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Full text of "International law situation and documents : 1956 Situation, documents and commentary on recent developments in the international law of the sea"

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NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW 
SITUATION AND DOCUMENTS 

1956 



SITUATION, DOCUMENTS AND COMMENTARY 

on 

RECENT DEVELOPMENTS IN 
THE INTERNATIONAL LAW OF THE SEA 

by 
Brunson MacChesney 



$ 



NAVPERS 15031 
Volume LI 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1957 



For sale by the Superintendent of Documents, U. S. Government Printing Office 
Washington 25, D. C— Price $2.75 



FOREWORD 

A major purpose in the compilation of the materials in this 
volume has been to provide a collection of treaties, laws and other 
materials dealing with recent developments in the international 
law of the sea, and air law developments related thereto, which 
might be of value to the officers and other personnel of the U.S. 
Navy. It is hoped that officials in other departments of the U.S. 
Government, and in other governments, as well as teachers and 
students of international law, may also find it useful. 

An International Law Situation, drawn from a problem used 
in the curriculum of the Naval War College, was included in 
this volume in the hope that it would serve to encourage later 
writers in this Blue Book Series to revive the custom that was 
inaugurated so many years ago by the late Professor George 
Grafton Wilson. The present writer is deeply indebted to Pro- 
fessors Jessup, Lissitzyn, Tucker, Gross, Baxter, Briggs, and 
McDougal for helpful comments on the Situation in draft form, 
but these gentlemen are not to be held responsible for the final 
conclusions therein. The Situation, with minor revision, has been 
published also in 52 Northwestern University Law Review 320 
(1957). 

The volume was essentially completed in the summer of 1956. 
So far as possible, information on developments throughout the 
volume was checked through October 1956, before the completed 
volume was delivered to the Naval War College in December 1956. 
On receipt of the galley proofs in August 1957, every effort was 
made to bring treaty information up to date through search of 
Treaties in Force (State Department Publication No. 6427), the 
Bulletin of the Department of State, and British Government lists. 
It was not possible to make a similar revision with respect to 
Treaties not in the above lists, nor with the national claims in 
Part II, Section VI, nor with statutory or administrative changes 
affecting the laws cited in Part III. 

The writer is grateful to many institutions and people for 
assistance in the preparation and collection of material. His 
greatest debt is to L. Anthony Zega, Esq., of the New York Bar, 
who served as an assistant during his tour of duty at the Naval 
War College. Many other individuals at that institution, too 

iii 



IV 

numerous to mention here, were most helpful. Similarly, the 
libraries of Brown University and Yale University School of Law 
were courteous and helpful on numerous occasions. Oscar Schach- 
ter, and Chafic Malek, as well as other members of the Legal 
Division of the United Nations Secretariat, were most generous 
in making materials available, and assisting in other ways. Of- 
ficials of the Pan American Union were similarly helpful. The 
Department of State's Office of Legal Adviser as well as other 
offices of that and other departments were of great assistance. 
Willard Cowles, then Deputy Legal Adviser, was a most gracious 
guide in this aspect of the work. Arnold W. Knauth, Esq., of the 
New York Bar, was of great assistance in the preparation of 
Section VII of Part II. Commander Mitchell P. Strohl, U.S.N., of 
the Naval War College, was most helpful throughout the prep- 
aration of the book. The assistance of Miss Elaine Teigler of the 
Northwestern University Law School Library staff with docu- 
ments, and Mrs. Angela Henzler, my secretary, with typing and 
proofreading, is gratefully acknowledged. 



Brunson MacChesney 



Northwestern University School of Law, 
Chicago, Illinois, 
October 26, 1957. 



PREFACE 

The publication of this series was inaugurated by the Naval 
War College in 1894. This is the fifty-first volume in the series, 
as numbered for index purposes. The titles vary slightly from year 
to year. The preceding volume is entitled International Law 
Studies 1955, The Law of War and Neutrality at Sea, by Professor 
Robert W. Tucker. 

The post- World War II period has been one of decidedly in- 
creased interest in that portion of International Law dealing with 
jurisdiction and sovereignty over water areas of the world. Ex- 
ploitation of offshore mineral resources; increased international 
competition in the fishing industry; and the enormously destruc- 
tive potential of new weapons systems have prompted many 
of the coastal and maritime states to review their policies with 
respect to the territorial sea, the high seas, the continental shelf 
and superjacent air spaces. This volume on the International Law 
of the Sea is particularly directed to recent developments in 
these categories of interest. It was edited by Professor Brunson 
MacChesney of the Northwestern University School of Law, the 
1955-56 occupant of the Naval War College Chair of International 
Law. 

The opinions expressed in this volume are not necessarily those 
of the U.S. Navy or of the Naval War College. 

Thomas H. Robbins, Jr., 
Rear Admiral, U. S. Navy, 
President, Naval War College. 
Newport, 1 January 1957. 



SUMMARY TABLE OF CONTENTS 



PART I. 



PART II. 

SECTION I. 
SECTION II. 

SECTION III. 

SECTION IV. 
SECTION V. 

SECTION VI. 



SECTION VII. 



PART III. 



SECTION I. 
SECTION II. 
SECTION III. 



Page 
INTERNATIONAL LAW SITUATION 1 

SITUATION I. Neutral Duties, the passage of 
belligerent warships in neutral territorial 
waters, and the right of belligerents to use 
force to remedy violation of Neutrality 5 

RECENT DEVELOPMENTS IN THE LAW OF 
THE SEA— DOCUMENTS AND COMMEN- 
TARY 49 

Judicial and Arbitral Decisions 55 

Multilateral Proposals, Agreements, and Claims 

of General Significance 157 

Fishery Agreements Relating to Conservation 

of Stock 295 

Fishery Treaties Defining Fishery Limits 385 

Treaty on Continental Shelf and Supplementary 

Legislation 397 

National Legislation, Unilateral Claims con- 
cerning the High Seas, the Territorial Sea, 
the Continental Shelf, and Fisheries. Rep- 
resentative Protests by other States 401 

Recent Important Maritime Conventions of 

General Interest 503 

NATIONAL CLAIMS AND AGREEMENTS 
PROVIDING FOR AIR AND SEA ZONES 

FOR DEFENSIVE PURPOSES 573 

Air Defense Identification Zones 577 

United States Air and Sea Regulations 601 

Testing Areas for Modern Weapons Systems . . . 609 



VI 



DETAILED TABLE OF CONTENTS 

Page 

PART I. INTERNATIONAL LAW SITUATION 1 

SITUATION I. NEUTRAL DUTIES, THE PASSAGE OF BEL- 
LIGERENT WARSHIPS IN NEUTRAL TERRITORIAL 
WATERS, AND THE RIGHT OF BELLIGERENTS TO USE 

FORCE TO REMEDY VIOLATION OF NEUTRALITY 5 

The Situation 5 

Problem 6 

Solution 6 

Notes : 

The Altmark Case 6 

Comparison of Facts in Situation and Altmark Case 8 

Opinions of Writers on Altmark Case 8 

Provisions of Hague Convention XIII — Other Texts 10 

"Mere Passage" 14 

Application to the Present Situation 20 

Application to the Altmark Case 21 

Right of Search 21 

State U as a Neutral Member of the United Nations 22 

Use of Force by a Belligerent to Redress Abuse of Neu- 
trality 23 

Application to Present Situation 26 

Application to Altmark Case 26 

Student Comments 27 

Adequacy of Convention XIII 27 

Summary Conclusions 29 

Solution 30 

Appendix I to Situation I. Correspondence between the United 
Kingdom Government and the Norwegian Government re- 
specting the German Steamer Altmark. (London, 17th Feb- 

ruary-15th March 1940. Norway No. 1 (1950) Cmd. 8012) . . 30 

PART II. RECENT DEVELOPMENTS IN THE LAW OF THE 

SEA— DOCUMENTS AND COMMENTARY 49 

Note on Abbreviations 53 

SECTION I. JUDICIAL AND ARBITRAL DECISIONS 55 

A. Anglo-Norwegian Fisheries Case 59 

1. Introductory Note to Fisheries Case 59 

2. Bibliographical Note to Fisheries Case 62 

3. Judgment (Opinion of the Court) 65 

4. Individual Opinion of Judge Alvarez . 94 

5. Separate Opinion of Judge Hsu Mo 103 

6. Dissenting Opinion of Sir Arnold McNair 107 

vii 



Vlll 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 
B. Abu Dhabi Arbitration Award 137 

1. Note 137 

2. Text of the Award 137 

SECTION II. MULTILATERAL PROPOSALS, AGREEMENTS, 

AND CLAIMS OF GENERAL SIGNIFICANCE 157 

Bibliographical Note 161 

A. United Nations International Law Commission Report on the 

Law of the Sea (Eighth Session, 1956) 163 

1. Note 163 

2. Text of Articles concerning the Law of the Sea, as con- 

tained in the International Law Commission's Final Re- 
port on the Law of the Sea 164 

3. Selected Commentaries by the United Nations Interna- 

tional Law Commission on the Articles concerning the 

Law of the Sea 185 

B. Report of the International Technical Conference on the Con- 

servation of Living Resources of the Sea — Rome (1955) .... 214 

1. Note 214 

2. Text of the Report 215 

C. Developments at Inter- American Conferences — (1950-56) 237 

1. Introductory Note 237 

2. Draft Convention on Territorial Waters and Related Ques- 

tions. (Inter- American Juridical Committee, Rio de 
Janeiro, July, 1952) 238 

a. Note 238 

b. Text of Draft Convention 238 

3. Resolution XIX, "Territorial Waters and Related Ques- 

tions" of the Second Meeting of the Inter-American 
Council of Jurists (Buenos Aires, 1953), and Reserva- 
tion of United States thereto 239 

a. Note 239 

b. Text of Resolution XIX 239 

4. Resolution LXXXIV, "Conservation of Natural Resources: 

The Continental Shelf and Marine Waters", of the Tenth 
Inter- American Conference (Caracas, 1954) 242 

a. Note 242 

b. Text of Resolution LXXXIV 242 

5. Resolution XIII, "Principles of Mexico and the Juridical 

Regime of the Sea", with Statements and Reservations 
thereto, of the Third Meeting of the Inter-American 
Council of Jurists (Mexico City, 1956) 244 

a. Note 244 

b. Text of Resolution XIII 244 

6. Resolution I, "Resolution of Ciudad Trujillo", with State- 

ments of the Delegations appended thereto, of the Inter- 
American Specialized Conference on "Conservation of 
Natural Resources: The Continental Shelf and Marine 
Waters" (Ciudad Trujillo, 1956) 255 



IX 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

a. Note 255 

b. Text of Kesolution 1 256 

D. Chile-Ecuador-Peru Agreements, 1952-1955 264 

1. Introductory Note 264 

2. Agreements between Chile, Ecuador and Peru signed at the 

First Conference on the Exploitation and Conservation 
of the Maritime Resources of the South Pacific, Santiago, 
18 August 1952 265 

a. Declaration on the Maritime Zone 265 

b. Organization of the Standing Committee on the Use 

and Conservation of the Marine Resources of the 
South Pacific 267 

c. Joint Declaration on Fishery Problems in the South 

Pacific 269 

d. Regulations Governing Whaling in the Waters of the 

South Pacific 270 

3. Agreements between Chile, Ecuador and Peru signed at 

the Second Conference on the Exploitation and Conserva- 
tion of the Maritime Resources of the South Pacific, Lima, 
4 December 1954 275 

a. Agreement Supplementary to the Declaration of Sov- 

ereignty over the Maritime Zone of Two Hundred 
Miles 275 

b. Agreement relating to Penalties 276 

c. Agreement relating to Measures of Supervision and 

Control in the Maritime Zones of the Signatory 
Countries . 278 

d. Agreement relating to the Issue of Permits for the 

Exploitation of the Maritime Resources of the South 
Pacific 279 

e. Agreement relating to the Regular Annual Meeting of 

the Standing Committee 281 

f. Agreement relating to a Special Maritime Frontier 

Zone 281 

4. Final Act of the Third Meeting of the Permanent Com- 

mittee of the Conference on Exploitation and Conserva- 
tion of the Maritime Resources of the South Pacific 
(Quito) , December, 1955. (Excerpts) 282 

a. Note 282 

b. Resolution on the Quota of Whalebone Whales to be 

Hunted by Land Stations. (Resolution VIII) 283 

c. Resolution on Quotas for the Pelagic Hunting of Sperm 

Whales. (Resolution IX) 283 

d. Regulations on Permits for Exploitation of the Re- 

sources of the South Pacific 283 

5. Enforcement — Judgment (Opinion) of Peruvian Port Offi- 

cer (1954) 289 

a. Note 289 

b. Text of Judgment 290 



X 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

SECTION III. FISHERY AGREEMENTS RELATING TO CON- 
SERVATION OF STOCK 295 

A. International Convention for the Regulation of Whaling, 1946, 

with Annexed Schedule containing Amendments as of 7 

March 1956 299 

1. Note 299 

2. Text of Convention 300 

3. Text of Amendments 306 

B. North Atlantic 315 

1. International Council for the Exploration of the Sea (1902). 

Statutes of the Council as Revised 1950 315 

a. Note 315 

b. Statutes of the Council as Revised 1950 316 

2. Convention for the Regulation of Meshes of Fishing Nets 

and the Size Limits of Fish (1946) 317 

a. Note 317 

b. Text of Convention 317 

3. International Convention for the North-West Atlantic 

Fisheries (1949) 324 

a. Note 324 

b. Text of Convention 324 

C. Mediterranean 335 

1. Agreement for the Establishment of a General Fisheries 

Council for the Mediterranean (1949) 335 

a. Note 335 

b. Text of Agreement 335 

D. Indo-Pacific 340 

1. Agreement for the Establishment of an Indo-Pacific Fish- 
eries Council (1948) 340 

a. Note 340 

b. Text of Agreement 340 

E. North Pacific 345 

1. Fur Seals. Note on Agreements 345 

2. Sockeye Salmon. Note on Agreements 345 

3. International Convention for the High Seas Fisheries of 

the North Pacific Ocean (1952) with Annex and Protocol 346 

a. Note 346 

b. Text of Convention 346 

4. Convention for the Preservation of the Halibut Fishery 

of the Northern Pacific Ocean and Bering Sea (1953) . . . 356 

a. Note 356 

b. Text of Convention 357 

F. Western Pacific 360 

1. Introductory Note 360 

2. Treaty between Japan and the Union of Soviet Socialist 

Republics concerning Fisheries on the High Seas in the 

North Pacific Ocean and Annex (1956) 361 

a. Note 361 

b. Text of Treaty 361 



XI 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

3. Non-governmental Agreement Concerning Fishing in the 

Yellow Sea and the East China Sea (1956) 368 

a. Note 368 

b. Text of Agreement 368 

G. Eastern Pacific 370 

1. Convention Between the United States of America and the 
Republic of Costa Rica for the Establishment of an Inter- 
American Tropical Tuna Commission, and Exchange of 
Notes (1950) . Adherence by Panama 21 September 1953. . 370 

a. Note 370 

b. Text of Convention 371 

c. Exchange of Notes 375 

H. Great Lakes 378 

1. Convention on Great Lakes Fisheries Between the United 

States of America and Canada (1954) 378 

a. Note 378 

b. Text of Convention 378 

SECTION IV. FISHERY TREATIES DEFINING FISHERY 

LIMITS 385 

A. Exchanges of Notes (1954 and 1955) amending the Convention 

between the United Kingdom and Denmark for Regulating 
the Fisheries outside Territorial Waters in the Ocean sur- 
rounding the Faroe Islands of June 24, 1901 388 

1. Articles 2, 4 and Additional Article, 1901 Convention 388 

a. Note 388 

b. Text of Articles 388 

2. Exchanges of Notes (1954 and 1955) 389 

a. Note 389 

b. Texts of Notes 389 

B. Fisheries Agreement Between the United Kingdom and the 

Union of Soviet Socialist Republics Together with Minute 
to Article 1 and Exchange of Notes on Territorial Waters 

(1956) 393 

1. Note 393 

2. Text of Agreement 393 

C. Other recent similar Treaties. Note 396 

SECTION V. TREATY ON CONTINENTAL SHELF AND SUP- 
PLEMENTARY LEGISLATION 397 

A. United Kingdom- Venezuela Treaty (1942) with summary and 

excerpts. Note 399 

SECTION VI. NATIONAL LEGISLATION, UNILATERAL 
CLAIMS CONCERNING THE HIGH SEAS, THE TERRI- 
TORIAL SEA, THE CONTINENTAL SHELF, AND FISH- 
ERIES. REPRESENTATIVE PROTESTS BY OTHER STATES 401 

A. The United States 407 

1. The Continental Shelf 409 

a. Introductory Note 409 

b. Presidential Proclamation, 28 September 1945 410 



Xll 



DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

c. Submerged Lands Act, 22 May 1953 412 

d. Outer Continental Shelf Lands Act, 7 August 1953. . . . 418 
2. Territorial Waters and Fisheries 431 

a. Introductory Note 431 

b. Presidential Proclamation, 28 September 1945 434 

c. Executive Order No. 9634, 28 September 1945 435 

d. Protection of Vessels on the High Seas and in Terri- 

torial Waters of Foreign Countries. Public Law 680, 

27 August 1954 436 

B. Significant Developments in Other Countries 439 

1. Argentina. Note 441 

2. Australia 441 

a. Note 441 

b. Proclamation of Continental Shelf, Australia, 10 Sep- 

tember 1953 442 

c. Proclamation of Continental Shelf, Territory of New 

Guinea, 10 September 1953 443 

3. Brazil 444 

a. Note 444 

b. Presidential Decree No. 28, 840, 8 November 1950 (Ex- 

cerpts) 444 

4. Bulgaria 444 

a. Note 444 

b. Decree of 10 October 1951 concerning the Territorial 

and Inland Waters of the People's Republic of Bul- 
garia 445 

5. Canada. Note 447 

6. Chile 448 

a. Note on Claims and Protests 448 

b. Swedish Note of Protest to Chile, October 1954 448 

c. United States Note of Protest to Chile, 2 July 1948 450 

7. China, Republic of (Nationalist). Note 451 

8. Costa Rica. Note 451 

9. Cuba 452 

a. Note 452 

b= Articles 1 and 2 of Legislative Decree No. 1948 of 27 

January 1955 452 

10. Denmark. Note 452 

11. Dominican Republic 453 

a. Note 453 

b. Article V of Constitution of 1947 (Excerpt) 453 

c. Act No. 3342 of 13 July 1952 concerning the Extent of 

the Territorial Waters of the Republic 453 

12. Ecuador 455 

a. Note 455 

b. Congressional Decree concerning the Continental Shelf,. 

21 February 1951 456 

13. Egypt 457 

a. Note 457 



Xlll 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

b. Royal Decree concerning the Territorial Waters of the 

Kingdom of Egypt, 15 January 1951 458 

14. El Salvador 460 

a. Note 460 

b. Article 7 of the Political Constitution of 7 September 

1950 460 

15. Ethiopia 460 

a. Note 460 

b. Maritime Proclamation, No. 137 of 1953 461 

c. Swedish Note of Protest to Ethiopia, 11 February 1954. . 461 

16. Guatemala 462 

a. Note 462 

b. Article 3 of the Constitution of the Republic of Guate- 

mala of 1 March 1956 462 

17. Honduras 462 

a. Note 462 

b. Congressional Decree No. 102, Amending the Political 

Constitution, 7 March 1950 463 

c. Congressional Decree No. 25 (Approving Presidential 

Decree No. 96 of 28 January 1950) , 17 January 1951 . . 464 

18. Iceland 466 

a. Note 466 

b. Law No. 44 of 5 April 1948 concerning the Scientific 

Conservation of the Continental Shelf Fisheries, as 

Amended, and Statement of Reasons (Excerpts) .... 468 

c. Articles 1 and 2 of the Regulations of 19 March 1952 

concerning conservation of fisheries off the Icelandic 

Coasts 471 

19. India 472 

a. Note 472 

b. Presidential Proclamation of 22 March 1956 473 

20. Iran 473 

a. Note 473 

b. Act of 19 June 1955 concerning the Exploration and 

Exploitation of the Continental Shelf 473 

21. Israel 474 

a. Note 474 

b. Government's Decision of 11 September 1955 475 

c. Proclamation of 3 August 1952 475 

d. Submarine Areas Law, 5713-1953 475 

22. Japan. Note 476 

23. Korea 476 

a. Note 476 

b. Presidential Proclamation of Sovereignty Over Adjacent 

Seas, 18 January 1952 476 

c. The Fishery Resources Conservation Law, No. 298, 

Promulgated 12 December 1954 478 

24. Mexico 479 

a. Note 479 

b. Presidential Decree, 25 February 1949 480 



XIV 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

c. United States Protest Note of 14 January 1948 481 

25. Nicaragua. Note 482 

26. Norway 483 

a. Note 483 

b. Royal Decree of 18 July 1952, as Amended 17 October 

1952 484 

27. Pakistan. Note 486 

28. Panama. Note 486 

29. Peru. Note 486 

30. Philippines 487 

a. Note 487 

b. Note from Philippine Foreign Ministry to the United 

Nations Secretariat, 12 December 1955 487 

31. Roumania. Note 488 

32. Saudi Arabia. Note 488 

33. Sweden. Note 489 

34. Turkey. Note 489 

35. United Kingdom, Arab Protectorates, and Colonies 489 

a. Continental Shelf. Note 489 

b. Territorial Waters and Fisheries. Note 490 

(1.) Statement of United Kingdom Policy on Ter- 
ritorial Waters, 14 December 1953 491 

36. Union of Soviet Socialist Republics 492 

a. Continental Shelf. Note 492 

b. General Position of the Soviet Union on Territorial 

Waters and Fisheries. Note 492 

(1.) Soviet Salmon Fishing Decree of 21 March 1956 494 

c. Baltic Territorial Water Limits: Soviet Dispute with 

Sweden and Denmark. Note 495 

(1.) Note from the Swedish Embassy in Moscow to the 

Soviet Russian Foreign Ministry, July 18, 1951 496 
(2.) Note from the Soviet Russian Foreign Ministry to 
the Swedish Embassy in Moscow, August 21, 

1951 499 

37. Venezuela. Note 500 

38. Yugoslavia. Note 500 

SECTION VII. RECENT IMPORTANT MARITIME CONVEN- 
TIONS OF GENERAL INTEREST 503 

A. International Load Line Convention (with Final Protocol and 

Annexes) signed at London, July 5, 1930 507 

1. Note 507 

a. Status of the Convention as of October 25, 1956 507 

B. International Convention for the Safety of Life at Sea, 1948. . 509 

1. Note 509 

a. Text of the Convention 510 

b. Status Table as of October 25, 1956 517 

2. International Regulations for Preventing Collisions at Sea, 

1948. Note 519 

a. Parties to the Regulations as of October 25, 1956 519 



XV 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

C. United Nations Maritime Consultative Organization, 1948 (Not 

in Force, 1956) 519 

1. Note 519 

a. Text of the Convention 520 

b. Status of the Convention as of October 25, 1956 (Not 

in Force) 535 

D. The International Convention for the Prevention of Pollution 

of the Sea by Oil, 1954. (Not in Force, 1956) 537 

1. Note 537 

a. Text of the Convention and Annex A on Prohibited 

Zones 537 

b. Status of the Convention as of October 25, 1956 (Not 

in Force) 548 

(1) Signatories 548 

(2) Ratifications 548 

c. Oil in Navigable Waters Act, 1955 (3 and 4 Eliz. 2, 

Ch. 25) . (Excerpts) 549 

(1) Note 549 

(a) Text of Excerpts from Act 549 

E. International Conventions on Maritime Law, Brussels, May 

10, 1952 561 

1. Note 561 

a. International Convention on Certain Rules concerning 

Civil Jurisdiction in Matters of Collision, Brussels, 

May 10, 1952. (Text) 561 

b. International Convention for the Unification of Certain 

Rules relating to Penal Jurisdiction in Matters of 
Collisions or Other Incidents of Navigation, Brussels, 
May 10, 1952. (Text) 565 

c. International Convention relating to the Arrest of Sea- 

going Ships, Brussels, May 10, 1952. (Text) 566 

2. Status of the 1952 Brussels Conventions as of 9 October 

1956 571 

a. Civil Convention, Entered into Force 14 September 

1955 572 

b. Penal Convention, Entered into Force 20 November 

1955 572 

c. Arrest Convention, Entered into Force 24 February 

1956 572 

PART III. NATIONAL CLAIMS AND AGREEMENTS PROVID- 
ING FOR AIR AND SEA ZONES FOR DEFENSIVE PUR- 
POSES 573 

SECTION I. AIR DEFENSE IDENTIFICATION ZONES 577 

A. United States Air Defense Identification Zone 579 

1. Note 579 

2. Security Control Regulations for Air Traffic 579 

3. Interpretative Letter 591 



XVI 

DETAILED TABLE OF CONTENTS (Cont'd) 

Page 

B. Canadian Air Defense Identification Zone 592 

1. Note 592 

2. Rules for the Security Control of Air Traffic 592 

SECTION II. UNITED STATES AIR AND SEA REGULATIONS 601 

A. Defensive Sea Areas 602 

1. Note 602 

2. Areas currently in force 604 

B. Airspace Reservations 604 

1. Note 604 

2. Reservations currently in force 605 

C. Harbors Closed to Foreign Vessels 607 

1. Note 607 

D. Maritime Control Areas 607 

1. Note 607 

E. Customs Enforcement Areas 607 

1. Note 607 

SECTION III. TESTING AREAS FOR MODERN WEAPONS 

SYSTEMS 609 

A. Long Range Proving Ground for Guided Missiles 611 

1. Note 611 

2. Agreement of 21 July 1950 between the United States and 

the United Kingdom establishing "The Bahamas Long 

Range Proving Ground." 612 

B. Danger Areas for Nuclear Weapons Tests 627 

1. Note 627 

2. Closed Areas effective January 7, 1956 627 

3. Danger Area effective April 20, 1956 628 

4. Discontinuance, August 25, 1956, of Danger Area 628 



LIST OF MAPS AND CHARTS 

Page 

FIGURE 1. Hypothetical Situation 4 

FIGURE 2. Area involved in the Anglo-Norwegian Fisheries Case. . 58 

FIGURE 3. Icelandic Claim to Fishery Limit 467 

FIGURE 4. U.S. Air Defense Identification Zones and Defense 

Areas 578 

FIGURE 5. Canadian Air Defense Identification Zones and Security 

Identification Zones 593 

FIGURE 6. U.S. Guided Missile Range 610 



XVI 1 



PART I 



INTERNATIONAL LAW SITUATION 



PART I 
INTERNATIONAL LAW SITUATION 



Page 



SITUATION I. NEUTRAL DUTIES, THE PASSAGE OF BEL- 
LIGERENT WARSHIPS IN NEUTRAL TERRITORIAL 
WATERS, AND THE RIGHT OF BELLIGERENTS TO USE 

FORCE TO REMEDY VIOLATION OF NEUTRALITY 5 

The Situation 5 

Problem 6 

Solution 6 

Notes: 

The Altmark Case 6 

Comparison of Facts in Situation and Altiruirk Case 8 

Opinions of Writers on Altmark Case 8 

Provisions of Hague Convention XIII — Other Texts 10 

"Mere Passage" 14 

Application to the Present Situation 20 

Application to Altmark Case 21 

Right of Search 21 

State U as a Neutral Member of the United Nations 22 

Use of Force by a Belligerent to Redress Abuse of Neutrality. . 23 

Application to Present Situation 26 

Application to Altmark Case 26 

Student Comments 27 

Adequacy of Convention XIII 27 

Summary Conclusions 29 

Solution 30 

Appendix I to Situation I. Correspondence between the United 
Kingdom Government and the Norwegian Government respect- 
ing the German Steamer Altmark. (London, 17th February- 
loth March 1940. Norway No. 1 (1950) Cmd. 8012) 30 




u 

B 

fa 



Situation I. Neutral Duties, the Passage of Belligerent 
Warships in Neutral Territorial Waters, and the Right 
of Belligerents to Use Force to Remedy Violation of 
Neutrality. 

The following hypothetical International Law Situation was 
presented to the students of the Naval War College as a part 
of one of their Operational Problems. See figure 1 for illustration 
of the Situation. 

THE SITUATION 

State A and thirteen other states are members of the United 
Nations and of a Defense Pact organized under Article 51 of the 
Charter. States X, Y and Z, also members of the United Nations, 
commenced without warning an armed attack on a member of 
the Defense Pact. In the Security Council, the Defense Pact States 
thereupon charged States X, Y and Z with aggression, but X, a 
permanent member thereof, "vetoed" the resolution condemning 
X, Y and Z as aggressors and calling for sanctions. The General 
Assembly was then convened under the Uniting For Peace Reso- 
lution and passed, with a two-thirds majority, a resolution con- 
demning the aggression and calling upon United Nations members 
for voluntary assistance to the victims of the aggression. State U, 
although a member of the United Nations, announced that she 
would maintain a position of neutrality. Despite the General 
Assembly resolution, X, Y and Z launched a major offensive. 
Fighting had been in progress for some months and nuclear 
weapons had been used, for tactical purposes, on both sides. 

J, a member State of the Defense Pact, had been ocupied by 
X, Y and Z in its northwest and northeast regions. The Defense 
Pact States commenced an amphibious attack on the northwest 
coast of J. X had assembled, in its port of Granada, some 700 
miles from J, special weapons personnel and equipment for use in 
the northwestern part of J. The personnel and equipment were 
embarked on the "Lost Charm" for New Paris, a northwestern J 
port now in the hands of X. New Paris is near the area of 
amphibious operations, and one of the objectives of the operations. 
Instead of taking the usual and most direct route, X directed the 
commander of the "Lost Charm," an auxiliary of X flying X's 
service flag, to proceed through the X-coalition territorial waters 



6 

and thence through IPs territorial waters, to arrive at J's border 
at nightfall, and thence to New Paris under cover of darkness. 
This route was eight hundred miles longer than the direct route 
from X's port of Granada to New Paris in J. The estimated time 
required for the "Lost Charm" to traverse U's territorial waters 
was 50 hours, in addition to the time required to transit the 
X coalition's territorial waters. The excess time over the direct 
route may be estimated at 80 hours. 

The mission and location of the "Lost Charm" were discovered 
by the Defense Pact's intelligence just after that ship had entered 
the territorial waters of U. A's ambassador to U, on behalf of the 
Defense Pact, immediately informed U's Foreign Office of these 
facts and demanded that U either intern the "Lost Charm" or 
order the "Lost Charm" out of U's territorial waters. U, relying 
on the Altmark precedent in World War II, replied that it 
would not comply with either request. 

Problem : 

a. Has U violated its duties as a neutral in refusing to comply 
with A's demand on behalf of the Defense Pact? 

b. Are the Defense Pact States entitled to use force against the 
"Lost Charm" in U's territorial waters, if U is unable or unwill- 
ing to comply with A's demand, and should have done so ? 

Solution : 

a. U has violated its duties as a neutral in permitting an 
abusive use of its territorial waters that was not for bona fide 
purposes of navigation and was prejudicial to the security interests 
of the coastal state and to the interests of the Defense Pact as 
opposing belligerents. Such use is not the "mere passage" author- 
ized by Article X of Hague Convention XIII. 

b. While every breach of neutral duties does not authorize 
forceful counteraction by an aggrieved belligerent, in the case of 
such a grave violation as the instant Situation presents, the 
Defense Pact States were legally entitld to use force to prevent 
irremediable injury arising from U's breach of neutrality. 

NOTES 

The Altmark Case 

The hypothetical situation is of course essentially similar to 
the Altmark case which took place in Norwegian territorial waters 
in 1940. A general and readable account of the incident is The 



Altmark Affair, by Frischauer and Jackson (The Macmillan 
Company, New York, 1955). The essential facts of that case were 
briefly summarized in Hackworth, Digest of International Law, 
Vol. VII, pp. 568-69, (1943), as follows: 

''The German steamer, Altmark, previously a mer- 
chant tanker but at the time in question a naval auxiliary, 
armed with anti-aircraft guns and flying the German 
official service flag as a vessel used for public pur- 
poses, entered Norwegian territorial waters on February 
14, 1940 with the intention of skirting the Norwegian 
and Swedish coasts until she reached a German port. 
She brought from the South Atlantic as prisoners 299 
British seamen who had been taken from vessels sunk by 
the German cruiser Admiral Graf Spee. Shortly after 
entering Norwegian waters she was hailed by a Nor- 
wegian naval vessel which inspected her papers. At that 
time the captain of the Altmark said that the ship was 
on her way from Port Arthur, Texas, to Germany. The 
next day another Norwegian naval vessel sought to in- 
spect her but was refused the right. Among other ques- 
tions, the captain of the Altmark was then asked whether 
there were on board any persons belonging to the armed 
forces of another belligerent or seamen resident in or 
nationals of another belligerent country, and to these 
he answered 'No\ At this time it was learned that the 
Altmark had been using her wireless transmitter within 
Norwegian waters, but the captain said that he was 
unaware of any prohibition against this and thereupon 
ceased doing so. A Norwegian torpedo boat was escorting 
the Altmark, and a second joined them February 16. That 
day British naval and air forces approached, and the 
British commanding officer suggested that the Altmark 
be taken under joint British and Norwegian escort to 
Bergen for full examination, but the Norwegian com- 
mander refused. The Norwegian authorities apparently 
remained unaware that prisoners were aboard the 
Altmark. British destroyers which had entered Nor- 
wegian territorial waters retired upon the protest of 
Norwegian officials but that night they forced the Alt- 
mark into Joesing Fjord. While the Norwegian torpedo 
boats stood by, forces from the British destroyer Cossack 
boarded the Altmark, which had gone aground in the 
fjord. Fighting ensued in which seven Germans were 



8 

killed or died of wounds and one British national was 
wounded. The prisoners were rescued and taken aboard 
the Cossack, and the British forces departed from Nor- 
wegian waters with the prisoners." 

Comparison of Facts in Situation and Altmark Case 

There are certain important differences between the facts of 
the hypothetical situation and the Altmark incident. The trans- 
port of special weapons personnel and equipment is undoubtedly 
of a less "innocent" character, and more likely to provoke bel- 
ligerent counter-action than the transport of prisoners. Moreover, 
with reference to question (b), the justification for the use of 
force has a stronger factual foundation in this Situation. Further- 
more, there is no question involved in the Situation as to the legal 
status of captured merchant seamen. However, the avoidance by 
the Altmark, en route from the South Atlantic to Germany, of 
the English Channel and the British Isles by going via Icelandic 
waters and then passing through Norwegian territorial waters 
for over two days and more than 400 miles before the British 
attack, and contemplating a further passage of 200 miles in those 
waters was equally abnormal in route and duration. The basic 
legal question as to the legality of the passage is, therefore, essen- 
tially unaffected by the factual differences. 



unions of Writers on Altmark Case 

The Altmark incident aroused controversy at the time, and dis- 
cussion of it has continued among writers on international law. 
Shortly after the incident occurred, the following opinion was 
expressed in the Naval War College International Law Situations, 
1939, pp. 14-15 : 

"The British Government and some international law- 
yers charged that Norway had failed in its duties and 
that it should not have allowed the Altmark to transport 
prisoners along its coast. More careful examination of 
the situation, however, indicates that Norway had no 
obligation to halt the Altmark, to force it to leave, to 
intern it, or to release the prisoners." 

Following this opinion, there appeared an extensive quotation 
from the similar opinion of the late Professor Borchard of Yale 
University which had appeared in full in 34 American Journal of 
International Law at pages 289-294 (1940). The late Professor 
Hyde, in the Second Revised Edition (1945) of his International 
Laiv, chiefly as interpreted and applied by the United States, 



concurred essentially in the same position. (Vol. Ill, p. 2340). 
Hackworth, Vol. VII, p. 575, concludes his treatment of the in- 
cident by quoting the opinion of the Naval War College, supra. 
Among foreign writers, Castren in The Present Law of War and 
Neutrality (Helsinki, 1954) discusses the question at pp. 515-517, 
and expresses doubt as to the validity of the British arguments 
in the matter. 

British writers, on the other hand, have come to the defense 
of the British position, particularly after the end of the war and 
in light of the published views of the American writers noted 
above. Dr. W. R. Bisschof , however, discussed the question before 
the Grotius Society in 1940, and first raised in the literature the 
issue of whether the Altmark's circuitous route and extended 
trip through the Norwegian territorial waters was not an abuse 
of neutrality and therefore not the "mere passage" permitted by 
Article X of Hague Convention XIII Concerning the Rights and 
Duties of Neutral Powers in Naval War (1907). ((1940) 26 
Grotius Society Transactions, p. 67 et seq.) In Oppenheim, 
International Law, Vol. II (7th Ed., 1952, by Lauterpacht) , the 
position is taken that prolonged use by a belligerent of neutral 
territorial waters for passage not dictated by the requirements of 
navigation and intended to escape capture is an illicit use of 
neutral territory which the neutral is under a duty to prevent 
(pp. 692-695). 

Without discussing the Altmark case in detail, Professor H. A. 
Smith in The Law and Custom of the Sea (2nd Ed., 1950), 
reached the same conclusion as a matter of general principle 
(pp. 148-153, esp. p. 152, n. 5). Colombos, in The International 
Law of the Sea (3rd Rev. Ed., 1954) reaches the same conclusion 
in a summary manner (pp. 510-511). The most extensive dis- 
cussion of the Altmark case and the most thorough exploration 
of the legal issues involved is in Waldock, "The Release of the 
Altmark's Prisoners,' , (1947), 24 British Year Book of Inter- 
national Law, pp. 216-238. Professor Waldock, Chichele Professor 
of International Law and Diplomacy at Oxford, concludes that the 
Altmark's passage was unlawful. The details of his argument 
will be examined at a later stage. Professor Stone of Australia 
in his Legal Controls of International Conflict (1954) expresses a 
similar opinion although differing somewhat in the details of 
his argument (pp. 394-5). 

Professor Telders of Leyden, The Netherlands, in "L'Incident 
de 1' Altmark" (Revue Generale de droit international public, Vol. 
48 (1941-5), pp. 90-100) reaches the same general conclusion but 
his arguments differ substantially from those previously referred 



10 

to. Starting with the view that the Altmark could not claim the 
status of a warship but that Norway could have treated her as 
such for neurality purposes, Telders argues that there was no 
time limit on passage in Norway's regulations and that Norway, 
not having forbidden passage as it could have, had impliedly 
permitted it. He contends, further, that Article XII of Hague 
Convention XIII imposed no time limit, and that Article X 
authorized passage for purposes of transit, which is not restricted 
to necessary transit. Such passage is, moreover, not deprived 
of its innocent character by the sole fact that a warship is using 
the passage as an asylum as well. But he nonetheless concludes 
that the legality of the Altmark' s position does not turn on the 
"passage" question because he argues that auxiliaries have no 
right to transport prisoners. Furthermore, whatever the immunity 
of warships from search, he asserts that auxiliaries have no such 
immunity. Therefore, he believes that Norway had a duty to search 
the Altmark; that its failure to do so was a breach of neutral 
duty; and that the British were justified on the basis of self- 
protection in their exceptional intervention which did not exceed 
the limits of necessity. 

In addition to "The Altmark Affair/' referred to previously 
as a good general account of the incident, the early official 
statements made by the British, German, and Norwegian Gov- 
ernments may be found in Documents on International Affairs, 
"Norway and the War" (Royal Institute of International Affairs, 
1941, pp. 33-38). In Norway, No. 1 (1950), Cmd. 8012, reprinted, 
infra, as Appendix I to this Situation, a White Paper issued by 
the British Foreign Office on August 15, 1950, the text of the final 
British Note of 15 March 1940, which reached Oslo shortly before 
the German invasion, was made available. This Note was the first 
time that the British raised the question of the compatibility of 
the passage with the privilege given by Article X of Hague Con- 
vention XIII. Cmd. 8012 includes the texts of other correspondence 
between the two governments in the period between 17 February 
and 15 March 1940. In the recently published International Law 
Studies, 1955 (U.S. Naval War College, Vol. L, 1957), Professor 
Tucker discusses the Altmark case in some detail and, in general, 
agrees with the British position (221n, 236-239, 262n). 

Provisions of Hague Convention XIII — Other Texts 

Hague Convention XIII of 1907, Convention Concerning the 
Rights and Duties of Neutral Powers in Naval War, is printed 
in full in Naval War College, International Latv Situations, 1908, 
at pp. 213-222, and in Appendix B to the Law of Naval Warfare 



11 

(Navy Department, 1955). The text may also be conveniently 
found in 36 Stat. 2415, U.S.T.S. 545, and Malloy's Treaties, Vol. 
II, p. 2352. The status of the Convention as of 31 October 1955 
is given in State Department Publication No. 6346, page 203. 
Provisions particularly relevant to the discussion of the Situa- 
tion are the following: 

Article I. "Belligerents are bound to respect the 
sovereign rights of neutral Powers and to abstain, in 
neutral territory or neutral waters, from all acts which 
would constitute, on the part of the neutral Powers, 
which knowingly permitted them, a non-fulfillment of 
their neutrality. 

Article II. "All acts of hostility, including capture 
and the exercise of the right of visit and search, com- 
mitted by belligerent vessels of war in the territorial 
waters of a neutral Power, constitute a violation of 
neutrality and are strictly forbidden. 

Article V. "Belligerents are forbidden to use neu- 
tral ports and waters as a base of naval operations against 
their adversaries, and in particular to erect wireless 
telegraph stations or any apparatus for the purpose of 
communicating with belligerent forces on land or sea. 

Article X. "The neutrality of a Power is not af- 
fected by the mere passage through its territorial waters 
of ships of war or prizes belonging to belligerents. 

Article XII. "In the absence of special provisions 
to the contrary in the legislation of the neutral Power, 
belligerent ships of war are forbidden to remain in the 
ports, roadsteads, or territorial waters of the said 
Power for more than twenty-four hours, except in the 
cases covered by the present Convention. 

Article XIII. "If a Power which has been informed 
of the outbreak of hostilities learns that a belligerent 
ship of war is in one of its ports or roadsteads, or in 
its territorial waters it must notify the said ship to 
depart within twenty-four hours or within the time 
prescribed by the local regulations. 

Article XXV. "A neutral Power is bound to exercise 
such surveillance as the means at its disposal allow to 
prevent any violation of the provisions of the above 
Articles in its ports or roadsteads, or in its waters. ,, 

Although the Convention was not technically in force in World 
War II because certain of the belligerents, including the United 



12 

Kingdom, were not parties (see Article XXVIII), it has been 
generally recognized that the provisons of the Convention as a 
whole constituted an expression of binding customary interna- 
tional law on the subject. II Oppenheim, supra, pp. 234-236, 694 
n. 1 ; Law of Naval Warfare, supra, Ch. 2, n. 7, and Ch. 4, n. 18 ; 
Stone, supra, p. 391, n. 62. Before discussing the critical ques- 
tions of interpretation that arise out of the ambiguities of the 
relevant provisions of the Convention, reference may be made 
to comparable statements of the applicable law. The Harvard 
Draft Convention on Rights and Duties of Neutral States in Naval 
and Aerial War provides in Article 25 as follows: 

"A neutral State has no duty to prevent the passage of 
a belligerent warship through its territorial waters." 
(American Journal of International Law, Vol. XXXIII, 
Supplement, Part II, p. 179, and Comment, p. 421 
(1939)). [Quoted with the permission of the Harvard 
Law School.] 

In the Comment that follows at page 422, citation above, this 
wording is said to embody the substance of Article X of Hague 
Convention XIII and it is asserted to be a statement of the 
international law on the subject in force at that time. 

Law of Naval Warfare (Department of the Navy, 1955), pro- 
vides as follows in Section 443a : 

"a. Passage Through Territorial Sea. A neutral state 
may allow the mere passage of warships, or prizes, of 
belligerents through its territorial sea. 22 " 

Interpretative Footnote 22 to Section 443 reads in part as 
follows : 

«* * * Thus, the 'mere passage' that may be granted 
to belligerent warships through neutral territorial waters 
must be of an innocent nature, in the sense that it must 
be incidental to the normal requirements of navigation 
and not intended in any way to turn neutral waters into 
a base of operations. In particular, the prolonged use of 
neutral waters by a belligerent warship either for the 
purpose of avoiding combat with the enemy or for the 
purpose of evading capture, would appear to fall within 
the prohibition against using neutral waters as a base 
of operations. * * *" 

The International Law Commission's final Report on the Law 
pf the Sea ? adopted at its Eighth Session (1956), deals with the 



13 

right of Innocent Passage in Part I, Section III. The Report is 
reprinted in full, infra, Part II, Section 11,A,2. Although the 
International Law Commission's work is devoted to the law of 
the sea in time of peace, their formulations on this subject are 
valuable for the wartime situation as well, in view of the close 
connection between the wartime rules and the rules in peace- 
time, and the relevance of the peacetime standard to the inter- 
pretation of Article X, discussed, infra. 

Article 15, paragraph 3, defines innocent passage as follows : 

"3. Passage is innocent so long as the ship does not use 
the territorial sea for committing any acts prejudicial to 
the security of the coastal State or contrary to the pres- 
ent rules, or to other rules of international law." 

Article 16, paragraph 1, in defining the duties of the coastal 
State, states that it "must not allow the said sea to be used for 
acts contrary to the rights of other States." In Article 17, defining 
the rights of protection of the coastal State, paragraph 1 authorizes 
said State "to protect itself against any act prejudicial to its 
security or to such other of its interests as it is authorized to 
protect under the present rules and other rules of international 
law." Paragraph 3 authorizes the coastal State to suspend passage 
temporarily in definite areas if essential for protection of the 
rights in paragraph 1. Paragraph 4 forbids suspension of passage 
through straits "normally used for international navigation be- 
tween two parts of the high seas." Article 18 defines the duties 
of foreign ships during their passage. Articles 15, 16, 17, and 
18 apply to all vessels. 

Articles 24 and 25 are applicable to warships. Article 24 reads 
as follows : 

"1. The coastal State may make the passage of war- 
ships through the territorial sea subject to previous au- 
thorization or notification. Normally it shall grant inno- 
cent passage subject to the observance of the provisions 
of articles 17 and 18." 

Article 25 authorizes the coastal State to require warships, not 
observing its regulations after request to do so, to leave the 
territorial sea. 

In addition to the various texts referred to above, a high judi- 
cial interpretation of the meaning of innocent passage in a 
different context is of interest as a basis for comparison. 

In the Corfu Channel case (Merits) (International Court of 
Justice Reports, 1949, pp. 4-38), the Court held that warships 



14 

have a right of "innocent passage" in time of peace through 
straits used for international navigation (p. 28). The Court was 
also of the opinion that the straits did not have to be a necessary 
route but merely one used for international navigation. Although 
the passage of British warships through the Corfu Channel was 
also designed to test the Albanian attitude in view of a previous 
illegal firing by Albania, and to demonstrate force, the Court 
held that, under all the circumstances, the "mission," and the 
manner of carrying it out did not deprive the passage of its 
innocent character (pp. 30-32). (The Judgment of the Court is 
reprinted in Naval War College, International Law Documents, 
1948-4-9, pp. 108-156. The points discussed are to be found at 
pages 142-148). 

"Mere Passage" 

The principal legal issue that arises in question (a) of the 
Situation is whether the duration, route and mission of the "Lost 
Charm" can be considered "mere passage" through LPs terri- 
torial waters, or an abuse of this privilege. This inquiry in turn 
requires the interpretation of Hague Convention XIII, and 
particularly Article X thereof. In the Altmark case, the early 
discussion by the Governments involved and the writers as well, 
was largely directed to the right to search the Altmark and the 
lawfulness of transporting the prisoners. The British Note of 
15 March 1940, reprinted in Appendix I, infra, first published 
in 1950, and the British writers previously referred to, empha- 
sized the "mere passage" question. Consequently, the discussion 
of the Situation will necessarily consider the arguments advanced 
on this aspect of the Altmark case. 

Article X taken alone is ambiguous. It becomes even more so 
when read in the light of the Hague Convention XIII as a 
whole. On the one hand, the Convention is designed to prohibit 
belligerent activities of a hostile nature in neutral ports and 
waters. On the other hand, there are numerous exceptions which 
permit belligerents to use neutral ports and waters as an asylum. 
Furthermore, several of the provisions give the neutral great dis- 
cretion in defining its obligations under the Convention. 

The general principle is clear: that belligerents are bound to 
refrain from acts of hostility in neutral territory. What has been 
persistently troublesome, however, is the precise scope of the 
subsidiary principle expressed in Article V that neutral ports and 
waters shall not be used as a base of naval operations. Practice 
in the nineteenth century never resolved this problem and the 
provisions of Hague Convention XIII did not succeed in formulat- 



15 

ing an agreed and authoritative interpretation of this principle. 
See, for discussion, Hyde, supra, Vol. Ill, pp. 2249-2253 ; Stone, 
supra, pp. 392-395. 

Neutrals are obligated to deny any privilege of passage to bel- 
ligerents over the land territory or through the airspace of a 
neutral. It is now generally agreed that a neutral may, if it chooses, 
forbid passage through its territorial waters as well. See Jessup, 
The Law of Territorial Waters and Maritime Jurisdiction, pages 
120-121 ; Law of Naval Warfare, supra, Ch. 4, n. 22 ; Stone, supra, 
p. 395; II Oppenheim, supra, p. 693. When Hague Convention 
XIII was drafted, however, there was no such general agreement 
that a neutral could forbid passage through territorial waters. 
Many States argued that there was such a rule. The British in- 
sisted that there was a right of innocent passage. The British 
Delegation to the 1907 Hague Conference was the original proposer 
of the substance of Article X, and seemed to view "mere passage" 
as meaning innocent or inoffensive passage in the interests of 
normal navigation as in peacetime. Article X, as adopted, was 
in essence a formula for leaving this controversy in an unsettled 
status. By not adopting the rule of complete exclusion, the neutral 
was given the option of permitting "mere passage" in the interests 
of navigation rather than enforcing strict neutrality as neutrals 
are obligated to do under the land and air rules. See A. P. Higgins, 
The Hague Peace Conferences (1909), pp. 467-468. 

It is assumed for present purposes that State U has made no 
regulations on the subject with respect to either Article X or XII. 
The most reasonable interpretation of the Hague Convention as a 
statement of customary international law is thus the principal 
issue. Although, as stated, Article X is ambiguous in itself, it is 
first necessary to discuss the ambiguities in the relation of Article 
X to other Articles of the Convention. Article V forbids the use 
of neutral ports and waters as a base of naval operations by 
belligerents against their adversaries. Article XII provides that 
in the absence of special legislation by the neutral, as assumed in 
this Situation, belligerent warships are not permitted "to remain 
in" the ports, roadsteads, or territorial waters for more than 
twenty-four hours, "except in the cases covered by the present 
Convention." What is the relation of these Articles to Article X, 
which, in substance, states that a Power's neutrality is not com- 
promised by the "mere passage" ("simple passage" in the French 
Text) of warships through its territorial waters? 

Waldock, supra, at page 235, argues that "passage" is covered 
by the twenty-four hour rule of Article XII; that a circuitous 
route to evade attack was not "mere passage" within Article X 



16 

but the use of the neutral waters for naval operations contrary 
to Article V, or alternatively, if Article V was not violated, use 
for refuge was not "mere passage" within Article X, and there- 
fore passage is restricted to twenty-four hours by Article XII. 

These summarized conclusions of Professor Waldock do not do 
justice to his detailed argument, which may be briefly stated as 
follows: The Norwegian Neutrality Rules of 1938 (Vol. 32, 
American Journal of International Law, Supplement, 1938, pp. 
154-158) purport to restate the Hague rules. Although they dp 
not refer specifically to the duration of passage, they could not 
enlarge Article X which is customary international law. Article 
X, being silent, leaves the time question open. The question under 
Article XII is whether "remain" confines the twenty-four hour 
rule to stops or applies to every entry. Article XIII strengthens the 
argument for the twenty-four hour rule. There is no support for 
more than twenty-four hours in Norway's regulations, nor for 
Norway's distinction between passage after a stop and passage 
without a stop. The Pan-American General Declaration of Neu- 
trality of 1939 said that belligerent warships may remain no more 
than twenty-four hours in ports and waters with no mention of 
passage (34 American Journal of International Law, Supple- 
ment, 1940, p. 10) . The United States Proclamation of 5 September 
1939 (Naval War College, International Law Situations, 1939, p. 
123) made no exception for passage and the special rules for the 
Canal Zone (Ibid., p. 139) make this position even clearer. Despite 
British championship of innocent passage, her 1912 regulations 
adopted the twenty-four hour rule with no mention of passage. 
Therefore, Norway's contention of no time limit is doubtful and 
contrary to the natural meaning of the Convention and the regula- 
tions and interpretations of states. 

Moreover, Waldock's argument continues, whatever the time 
limit, passage is restricted to "mere passage," which means liberty 
of transit incident to normal navigation, and for that purpose and 
not to gain an advantage. Any other view invites abuse and pro- 
vokes hostilities. An abnormal course of extended duration is not 
"innocent." The use of Norway's waters as a protected corridor 
is the use as a base of operations contrary to Article V. Article 
XII admittedly permits asylum under the twenty-four hour rule 
but is inconsistent with modern standards of neutral duty, and 
the trend in the practice of states is to restrict asylum, citing 
Naval War College, International Law Situations, 1939, p. 44, on 
treatment of warships after entry. Even though Article XII 
was still valid in 1940 as a statement of customary law, it is not 
the same as indefinite passage through territorial waters, and 



17 

abnormal passage is not permitted by Article X. The use of 
Norway's territorial waters as a protected corridor was an issue 
in World War I. Norway closed her waters to submarines in 1916. 
Both Great Britain and the United States protested alleged viola- 
tions of this prohibition and urged Norway to mine her waters, 
which she did in 1918. Therefore, Norway knew of these views 
concerning the use of her territorial waters as a protected corridor. 
Professor Waldock then concludes as summarized, supra. 

Lauterpacht's Oppenheim, supra, pp. 694-5 and 694, footnote 1, 
argues that the permission of passage is limited by the overriding 
principle of preventing neutral waters from becoming a base for 
belligerents, and that a circuitous route not required by normal 
navigation and used as a means of escape is illicit. It is asserted 
that the provisions under reference can be reconciled by treating 
Article X as permitting passage beyond the twenty-four hours of 
Article XII, so long as the passage does not contravene Article V 
by turning the waters into a base of operations. Bisschof, supra, 
on the other hand, like Waldock, regards Article XII as setting a 
twenty-four hour limit to any passage under Article X. Professor 
Stone, supra, pp. 394-5, follows Lauterpacht's Oppenheim on this 
question but would require more in the way of circuity and degree 
of abuse. Neither Hyde nor Borchard, supra, really discuss this 
issue. Smith, supra, p. 152, Note 5, regards the question of whether 
passage under Article X is subject to the twenty-four hour rule 
of Article XII as debatable, and believes it is probably up to the 
neutral to define the time limit under its power to do so granted 
in Article XII. Castren, supra, recognizes the question of inter- 
pretation as doubtful but is inclined to regard Article XII as 
imposing no time limit on passage under Article X. 

Telders, supra, considers that neither Article XII nor the Con- 
vention as a whole impose any time limit on passage but does not 
discuss the bearing of Article V on the question. The British Note 
of 15 March 1940, Appendix I, infra, takes the position that 
Article X does not incorporate the 24-hour limit of Article XII 
but that Article X governs the time limit indirectly by the nature 
of the innocent passage which it permits. Furthermore, the Note 
contends that, although Article XII is not controlling as to time, 
it serves to refute any contention that no time limit exists since 
it applies also to territorial waters subject to the innocent passage 
permitted by Article X. Finally, as noted supra, the Laiv of Naval 
Warfare in its interpretative footnote 22 treats Article X as 
modified by the prohibition of Article V. Interpretative footnote 
23 treats the question of whether the 24-hour rule of Article XII 
limits the duration of passage under Article X as unsettled but 



18 

expresses the opinion that, if it does not, then passage under 
Article X must be limited to the normal requirements of naviga- 
tion. 

While, admittedly, the interpretation of the relationship between 
Articles V, X and XII in the light of the Convention as a whole is 
controversial, it is believed that the most reasonable interpretation 
is to regard "mere passage" under Article X as NOT limited by the 
24-hour rule of Article XII. However, the presence and wording 
of Article XII help to give meaning to the privilege of "mere 
passage" in Article X, as discussed hereafter. Furthermore, the 
most probable interpretation of Article X, suggested infra, quali- 
fies the privilege of passage given thereby. Finally, "mere passage" 
in Article X must also be restricted by the prohibitions of Article 
V against using territorial waters as a base of naval operations 
and by the generalized restrictions of Articles I and II and the 
Convention as a whole against using neutral territory for hos- 
tilities. 

With this interpretation of the relationship between the Articles, 
we now turn to a more detailed discussion of the meaning of 
"mere passage" in Article X. What has been said so far suggests 
that Article X can only be considered in the context of the Con- 
vention as a whole. It has already been indicated that Article X 
was a formula that left previous differences of opinion unsettled. 
It was a compromise in that sense between the view that neutrals 
could exclude passage altogether, and the British view that there 
was a right of innocent passage for warships in wartime similar 
to the peacetime right of merchant vessels. 

"Mere passage" in Article X can not be given a precise textual 
meaning. The legislative history provides no conclusive inter- 
pretation. The use of the qualifying word "mere" indicates some 
limitation on passage was intended. The British who introduced 
the phrase into their draft of the Article indicated that innocent 
passage in the peacetime sense was what they had in mind. Any 
meaning given to the phrase is necessarily an interpretation. What 
is the most reasonable one in the light of its history and the 
purpose it was intended to serve? Treating the question as one of 
defining what is meant by "innocent passage" in the peacetime 
sense is a step in the interpretation of "mere passage." 

The introduction of "innocent passage" in the peacetime sense 
as an analogy for use in interpretation is fundamentally am- 
biguous. It can not be transferred literally into the wartime situ- 
ation. The wartime trilateral relations between opposing bel- 
ligerents and a neutral coastal state are essentially different 
in kind and degree from the bilateral relations of a flag-state 



19 

and a coastal state in peacetime. Nevertheless, the peacetime 
analogy serves to indicate the type of passage that belligerents 
were willing to allow neutrals to grant. The type of passage con- 
templated is limited by two basic criteria. It must be an innocent 
passage for bona fide purposes of navigation rather than for 
escape or asylum. The passage must also be innocent in the sense 
that it does not prejudice either the security interests of the 
coastal state, or the interests of the opposing belligerent in pre- 
venting passage beyond the type agreed to in Article X. A passage 
that increased the burden of surveillance or the likelihood of em- 
broiling the neutral in hostilities would certainly prejudice the 
security interests of the neutral coastal state. Any passage that 
was prejudicial to other legitimate interests of the coastal state 
would warrant action by the coastal state but the coastal state 
would be under no duty since the additional interest of the op- 
posing belligerent would not be involved. By virtue of these sug- 
gested requirements, the belligerents are entitled to have passage 
so confined, and the neutral is under a duty to so limit the 
privilege. 

Such an interpretation is essentially in accord with the views 
of Lauterpacht, Stone, and Waldock. Lauterpacht's Oppenheim, 
supra, II, p. 694, n. 1, and p. 695 ; Stone, supra, pp. 394-5, and n. 
83, p. 394 ; Waldock, supra, pp. 232-235. 

The first of these criteria, that of passage for bona fide naviga- 
tional purposes, presents difficulties in itself. Suggestions that it 
means "normal" navigation practices raise problems as to the 
sense in which "normal" is used. Abnormal routes may still be 
bona fide ones. Nevertheless, extremely circuitous routes suggest 
possible bad faith. Moreover, motivations of escape or asylum 
make clear the purpose is not for navigation. 

With respect to the second criterion, it is believed that a passage 
by a belligerent that imposes special burdens of surveillance on 
the neutral and increases the likelihood of involving the neutral 
in hostilities with the opposing belligerent could not be "innocent" 
because it is prejudicial both to the security interests of the coastal 
state and to the interests of the opposing belligerent. This 
criterion would certainly encompass the use of neutral territorial 
waters as a protected corridor for purposes of avoiding capture 
or attack. Such a use might not reach the extent of employing 
such waters as a base for naval operations within the meaning 
of Article V, which certainly provides the outer limit to the rea- 
sonableness of the passage. In view of the ambiguity of Article 
V's prohibition against use as a base of naval operations referred 
to, supra, and the consequent doubt whether use as an asylum is 



20 

included in that prohibition, the interpretation suggested for 
"mere passage'' in Article X gives it a meaning consistent with 
the Convention as a whole. Article XII permits a twenty-four 
hour "stay," including use as an asylum, but, as previously in- 
dicated, it imposes no direct time limit on passage. Article X, 
while having no time limit, confers a special but limited privilege 
of passage by confinng it to a passage for bona fide navigational 
purposes and one that is also innocent in not being prejudicial to 
the security interests of the coastal state or the interests of the op- 
posing belligerent. Article V applies to both "stay" and "passage" 
and prohibits either if it reaches the point of use as a base for 
naval operations. 

It seems most likely, therefore, that "innocent passage" in 
peacetime of territorial waters as an international highway was 
intended as a standard in the sense indicated above. What effect 
does the duration of the passage have on its legality ? It has already 
been stated that the twenty-four hour rule of Article XII is not 
believed to be a direct legal limitation. There would seem to be 
no maximum time limit provided that the passage itself is "in- 
nocent." Duration beyond twenty-four hours is relevant only in 
its bearing on the question of whether the passage is "innocent." 

In the light of this interpretation of "passage" in Article X, 
does the "mission" of the ship furnish a further qualification of 
this limited privilege? It was strongly argued in the Altmark case 
that there was nothing wrongful per se in transporting prisoners. 
Whatever the merit of this contention, it would be unwarranted 
to claim that the nature of the "mission" has no bearing on the 
innocence of the passage. If the "mission" by its nature is pre- 
judicial to the security interests of the coastal state or the interests 
of the opposing belligerent, either by increasing the burden of 
surveillance or by increasing the likelihood of hostilities, it would 
be another relevant factor in making that determination. A 
fortiori, if the "mission" by its nature makes use of the waters 
as a base of naval operations, it would be a violation of Article V 
as well as Article X. 

Application to the Present Situation 

The route, purpose, and mission of the "Lost Charm" were not 
for purposes of bona fide navigation and were clearly prejudicial 
to the security interests of U, the neutral and coastal state, and 
to the interests of the Defense Pact as opposing belligerents. The 
longer duration of the voyage, and the abnormality of the route, 
while neither would be decisive in itself, were relevant to the 
total assessment of the character of the passage. The "mission" 



21 

was so clearly provocative and so obviously a military function 
that it constituted by itself a violation of Article V, and therefore 
exceeded without question the limited privilege of "innocent" 
passage given by Article V. The passage was designed to make 
use of IPs territorial waters as a shelter for naval operations. 
Passage in circumstances so overwhelming in their impact as 
these are should not be considered as the "mere passage" permitted 
by Article X. Such a passage is a flagrant abuse of IPs neutrality. 
By permitting such a pasage, U violated its duties as a neutral. 

Application to the Altmark Case 

The factual differences in the Altmark case have been noted, 
supra. Admittedly, the "mission" was less provocative. The ab- 
normal route and the duration of the use of Norwegian territorial 
waters would not in themselves be decisive. It is debatable whether 
the total circumstances can be regarded as the use of the waters as 
a base for naval operations within Article V, in the light of the 
ambiguous history of that provision. It was, however, the use of 
Norway's territorial waters as a means of escape and protection. 
The passage, considered in its entirety, constituted an employment 
of the neutral's territorial waters in a manner that was pre- 
judicial to the security interests of the coastal state and the inter- 
ests of the opposing belligerent. It increased the burden of 
surveillance and the likelihood of counteraction. Such a passage 
must be regarded as an abuse of Norway's neutrality, and can 
not be justified by the limited privilege of "mere passage" given 
by Article X of Hague Convention XIII. 

Right of Search 

The present Situation does not require a discussion of the 
prisoner question which was an issue in the Altmark case and 
which was thoroughly debated by many of the writers cited pre- 
viously. Although the search issue is not directly raised by the 
facts given in question (a) of the Situation, the right of the 
neutral to make a search was also thoroughly argued in the 
Altmark case, and is implicit in the Situation. Both Borchard and 
Hyde, supra, argued that there was no right to search a public 
ship such as the Altmark, except possibly to see if there was com- 
pliance with Norway's neutrality regulations (Borchard) . Telders, 
supra, on the other hand, argued that an auxiliary such as the 
Altmark was not immune from search. Assuming, arguendo, that 
there is normally immunity from search, the position of Waldock 
(supra, pp. 221-222), that the neutral's duty to enforce its obliga- 
tions under the Convention consitutes an exception to this im- 



22 

mimity, is more consistent with the spirit of the Convention, and 
a more workable rule if neutrality is to be preserved. Lauter- 
pacht's Oppenheim, supra, (p. 730, n. 4), concedes that Norway 
had no duty to search for the prisoners in order to release them, 
but argues that search would be relevant in determining whether 
the passage was "innocent," and therefore impliedly supports 
Waldock's position. The British Government Note of 15 March 
1940, reprinted, infra, Appendix I, argued vigorously that Norway 
had an obligation to determine whether the passage was lawful, 
and that failure to make a search for this purpose was a violation 
of neutrality. 

State U as a Neutral Member of the United Nations 

U, although a Member of the United Nations, declared her 
intention to be neutral. Despite the inconsistency between the 
collective security scheme of the Charter and traditional neutral- 
ity, it has been asserted that a status of neutrality for a Member 
on the facts of this Situation is technically possible. It has been 
factually possible, as Korea demonstrated. It is debatable whether 
it is legally possible in view of the obligation of Members under 
Article 2 (5) that: 

"All Members shall give the Unted Nations every as- 
sistance in any action it takes in accordance with the 
present Charter, and shall refrain from giving assistance 
to any state against which the United Nations is taking 
preventive or enforcement action." 

The "veto" prevented the United Nations from taking "action" 
in accordance with the original Charter scheme, and the recom- 
mendations of the General Assembly, although morally persuasive, 
cannot be deemed legally binding even on Members. Consequently, 
it is permissible to contend that U was legally free to take the 
position she did. It is believed, however, that she would have been 
also legally justified if she had complied voluntarily with the rec- 
ommendations. She had an imperfect right under Article 2 (5) 
to assist the collective action as well as the obligation not to give 
assistance to the States opposing the collective action. The right 
was "imperfect" in the sense that U and the Defense Pact's resort 
to force had not been authoritatively determined to be lawful by 
competent international authority. 

The writers generally are in accord with this position. The Law 
of Naval Warfare, supra, in Section 232, deals with the question 
and reads in part as follows : 

"Section 232. * * * * These obligations of the mem- 



23 

ber states, incompatible with the status of neutrality and 
with the principle of impartiality, come into existence 
only if the Security Council fulfills the functions dele- 
gated to it by the Charter. If the Security Council is 
unable to fulfill its assigned functions, the members may, 
in case of a war, remain neutral and observe an attitude 
of strict impartiality. 19 " 

In footnote 19, the opinion is expressed that the recommenda- 
tions of the Generaly Assembly are not legally binding and there- 
fore "neutrality and complete impartiality both remain distinct 
possibilities." 

Stone in Legal Controls of International Conflict, supra, passim, 
reaches this conclusion and asserts that the non-participating 
Members in the Korean situation were neutrals (p. 382, n. 14). 
Lauterpacht's Oppenheim, supra, pp. 647-652, reaches the same 
general conclusion, although believing that a member in U's posi- 
tion would have the right to discriminate against the aggressor. 
Lalive in "International Organization and Neutrality", (1947), 
24 British Year Book of International Laiv 72 at 77-84, discusses 
this possibility in a number of situations under the Charter, and 
concurs in the position taken above. Compare Taubenfeld in "In- 
ternational Actions and Neutrality" (1953), 47 American Journal 
of International Laiv 377-396, where the Korean situation is dis- 
cussed, and the conclusion reached that neutrality is not legally 
tenable for a Member in a "true" United Nations action (pp. 
390-395). Castren, supra, pp. 433-5, believes that a status of 
neutrality for a Member is possible despite Section 2 (5) of the 
Charter. 

Use of Force by a Belligerent to Redress Abuse of Neutrality 

It will now be assumed that the X-coalition's employment of the 
"Lost Charm" was a violation of U's neutrality and that U was 
obligated to either intern the "Lost Charm" or order it out of her 
territorial waters. Question (b) of the Situation raises the issue 
of whether the Defense Pact was entitled to use force in U's 
territorial waters to redress the breach of neutrality if U was 
unable or unwilling to do so. Since the facts of the Situation show 
that U, relying on the Altmark precedent, refused to comply with 
the Defense Pact's request, the question of the Defense Pact's 
right to employ force against the "Lost Charm" is directly raised. 

Article XXV of the Hague Convention, quoted supra, provides 
that a neutral is bound to exercise such surveillance "as the means 
at its disposal allow" to prevent violations of the Convention in 



24 

its waters. Articles III, VIII, and XXI, in referring to neutral 
duties of enforcement, also use the phrase "as the means at its 
disposal allow'' in defining the obligation. 

The facts stated in the Situation show a refusal to act, and do 
not therefore pose directly the issue of the use of force by a bel- 
ligerent when the neutral is willing but unable to act for lack of 
adequate means at its disposal. Under these latter circumstances, 
there is no violation of neutral duty. Nevertheless, despite that 
fact and the quoted language of the Convention, the writers gen- 
erally take the view that the injured belligerent, under sufficiently 
extreme circumstances, is authorized to use force to prevent 
irremediable injury to itself. The belligerent's obligation not to 
take hostile measures in neutral waters is inapplicable in extreme 
cases not only when the neutral is unwilling to act but also when 
it is unable to do so. 

When, however, as in the Situation, the neutral is unwilling to 
act even though able to do so, the neutral has breached its duty 
both under the Convention and under the general principles of 
customary international law. Here, too, under sufficiently extreme 
circumstances, the injured belligerent is authorized to use force 
to prevent irremediable injury to itself. The injured belligerent's 
normal remedy for such a breach of duty is to claim reparation 
through diplomatic channels. For anything less than a grave 
breach of duty, this is the only authorized remedy. The writers 
also agree, however, that the belligerent is justified in resorting 
to self-help under sufficiently extreme circumstances in which im- 
mediate cessation of the violation would be the only adequate 
remedy. Whether the resort to self-help was justified will depend 
both on the importance of the interests involved and the factual 
necessity for immediate action if irreparable injury is to be 
avoided. 

The Law of Naval Warfare, supra, after referring to the pro- 
hibition of acts of hostility in neutral jurisdiction, goes on to 
provide as follows : 

"Section 441. * * * However, a belligerent is not for- 
bidden to resort to acts of hostility in neutral jurisdiction 
against enemy troops, vessels, or aircraft making illegal 
use of neutral territory, waters, or air space, if a neutral 
state will not or cannot effectively enforce its rights 
against such offending belligerent forces. 21 " 

In footnote 21, the opinion is expressed that, despite the lan- 
guage of Article XXV of the Hague Convention, it is recognized 
that a belligerent has the right, as an extreme measure, to use 



25 

force against an enemy making illegal use of neutral territory, 
when the neutral is unable or unwilling to do so. 

Hyde, supra, although believing that the British were not justi- 
fied in using force in the Altmark case, affirms that in extraor- 
dinary circumstances the belligerent is justified in using force 
when the neutral is unable or unwilling to do so (Vol. Ill, pp. 
2337-2340). Waldock, supra, in defending the British action in 
the Altmark case, takes the position that any breach materially 
threatening the injured belligerent's interest is by its nature so 
serious that the principle of self-preservation justifies intervention 
in neutral waters, and that such right of intervention is now 
generally recognized, citing Hyde, supra. This right only accrues 
when the neutral is unable or unwilling to prevent the violation, 
citing Article XXV, supra. 

Lauterpacht's Oppenheim, supra, in supporting the British 
action in the Altmark case, argues that in circumstances where 
reparation would be inadequate, resort to self-help is justified 
(Vol. II, p. 695, n. 1). Stone, supra, (p. 401 and note 117, p. 401) 
differs from Lauterpacht and Waldock. He argues that only in case 
of self-preservation would self-help be justified, and does not be- 
lieve that self-preservation was involved in the Altmark case, citing 
the opinion of the International Court of Justice in the Corfu 
Channel case. In the Corfu Channel case (Merits), (1949), Inter- 
national Court of Justice Reports, pp .34-5, the Court held that in- 
tervention for the purpose of procuring evidence of violation of 
duty was an illegal use of force and that self -protection or self-help 
did not justify the action of the British Navy in the circumstances 
(Naval War College, International Law Documents, 1948-49, pp. 
151-152). Castren, supra, affirms the right of the injured bellig- 
erent to resort to self-help when the situation is serious, and the 
neutral is unable or unwilling to act (p. 442). Telders, supra, ar- 
gues that the British, not exceeding the limits of necessity, were 
fully justified in the Altmark case under international law, and 
supported not only by writers in general but by German doctrine as 
well (pp. 98-99). 

There is some dissent from this position. See Briggs, The Law 
of Nations (2nd Ed., 1952), p. 1039, and compare the Harvard 
Research Draft Convention on Rights and Duties of Neutral States 
in Naval and Aerial War, 33 American Journal of International 
Law, Supp., 1939, Articles 6, 8, 23, and 24, and comments at pages 
247-249, 257-263 and 392-421. 

The question should be noted whether self-help in this Situation 
by the injured belligerents, being Members of the United Nations, 
would constitute a violation of the Charter in view of Article 2, 



26 

paragraphs 3 and 4, and Article 51, which preserves the "inherent" 
right of self-defense. Paragraph 3 requires Members to settle their 
disputes by peaceful means in such a manner that international 
peace is not endangered. Paragraph 4 reads as follows : 

"All Members shall refrain in their international re- 
lations from threat or use of force against the territorial 
integrity or political independence of any state, or in 
any other manner inconsistent with the Purposes of the 
United Nations. " 

Full discussion of this important issue will not be attempted 
here. In brief, it is believed that the use of force in the extreme 
circumstances of the Situation would still be justified as a measure 
of self-defense. In borderline situations, however, such as the 
Altmark, if the Charter had thus been applicable, the use of force 
might be prohibited by the mandate of Article 2, paragraph 4. 
Consequently, to some extent, the neutral's territory in a future 
war may theoretically receive additional protection from this 
Charter provision. For further discussion, see Waldock, "The 
Regulation of the Use of Force by Individual States in Inter- 
national Law," Recueil des Cours, 1952, Vol. II, pp. 455-517, in 
which he considers the impact of the Corfu Channel case as well 
as the provisions of the U. N. Charter on the lawful use of force 
by individual states in international law. 

Application to Present Situation 

It has been seen that there is a general consensus that an in- 
jured belligerent has the right to resort to self-help if the circum- 
stances are sufficiently serious and the neutral is unable or 
unwilling to intervene to redress the breach of neutrality. The 
presence of special weapons personnel and equipment on the "Lost 
Charm" with their proximity to an area of operations made 
immediate action imperative, and the normal diplomatic remedies 
useless. Since U had refused to act, the Defense Pact forces would 
be fully justified under international law and under the Charter 
in using force to stop the X-coalition's abuse of U's neutrality. 
The fact that the Defense Pact States were acting under a General 
Assembly Resolution, even though not legally binding, provides 
additional support. 

Application to Altmark Case 

On the facts of the Altmark case, the right of self-help pre- 
sents a debatable question. As indicated previously, the writers 
have divided on the merits of the British intervention. Assuming 



27 

for the purpose of this aspect of the case that Norway had 
violated its duties as a neutral, the legality of the British inter- 
vention turns on whether the breach of neutrality was sufficiently 
serious to justify this extreme measure. Diplomatic redress would 
certainly have been inadequate under the circumstances. If Stone 
is correct that self-preservation is required, then intervention 
would not be justified. In view of the weaknesses of international 
society in providing adequate means for redressing wrongs, a 
rule permitting intervention on the ground of self-help on the 
facts in the Altmark case might be justified. Such a rule would 
be more in accord with the realities and more likely to insure the 
survival of the rules of neutrality. On the other hand, resort to 
self-help should be confined to the gravest circumstances. On moral 
and humanitarian grounds, the British intervention can be under- 
stood and defended. It is difficult to say dogmatically that their 
intervention violated the law in force at the time. The thrust of 
the Charter provisions and the Corfu Channel case, however, sug- 
gest that the use of force under such circumstances would now 
be illegal. In view of the weaknesses of international institutions 
previously mentioned, it may still be questioned whether such a 
conclusion is desirable. 

Student Comments 

The small student staff assigned to study and comment on the 
Situation concluded that the passage of the "Lost Charm" was not 
innocent and that self-preservation and self-help justified the use 
of force to end the violation of U's neutrality. The warlike nature 
of the "mission" was emphasized. The view was expressed that 
Hague Convention XIII needs reexamination in the light of 
modern weapons systems, which make necessary stricter measures 
to curb the advantages which may accrue to a belligerent in 
neutral waters. The right of self-preservation is more immediately 
involved. The passage of warships carrying materiel and per- 
sonnel to a combat zone cannot be "innocent" and the neutral 
should be obligated to prohibit such transit if neutrality is to be 
preserved. 

Adequacy of Convention XIII 

As suggested by the student staff comments, the Situation raises 
the question of the adequacy of Hague Convention XIII. Drawn 
up as it was in a period of comparative calm, and before the 
widespread violations of neutrality in the last two World Wars, 
it is inevitable that its provisions are no longer adequate for 
the conditions of modern warfare. Stone, supra, has dealt at 



28 

length with the contemporary crisis of neutrality and has stressed, 
inter alia, the effect of the inability of neutrals to live up to their 
duties {Passim, and especially on Hague Convention XIII, pp. 
391-396, and Discourse 23, pp. 402-407). Professor Hyde argued 
convincingly the inadequacy of proclaiming the inviolability of 
neutral territory and then permitting belligerent uses thereof 
which inevitably inspired warlike activities therein. He suggested, 
therefore, that passage through neutral coastal waters "should, by 
general agreement, be greatly restricted, if not entirely forbid- 
den^ (Vol. Ill, p. 2312). 

Professor H. A. Smith, supra, suggests in general terms that 
neutrality as presently constituted is unlikely to survive in any 
great conflict involving most of the world but that it may continue 
to serve its traditional purpose in small wars (pp. 75-76). He 
points out that the survival of neutrality even under these cir- 
cumstances will depend on the strictness with which it is ob- 
served. He argues that the chances of such survival would be 
greatly enhanced if a general policy of exclusion by neutrals of 
belligerent warships from their territorial waters were followed, 
as the Netherlands did in World War I. Consequently, sound 
policy should restrict as much as possible the facilities which 
belligerents can claim in neutral ports and waters. The right of 
"innocent passage" in this context is anomalous. He concludes 
that exclusion would be acceptable to belligerents, if territorial 
waters are restricted to the traditional three miles (pp. 160-161). 

This last proviso of Professor Smith requires a brief discus- 
sion of the effect that the decision by the International Court of 
Justice in the Fisheries case, reprinted, infra, in this volume, 
and other current developments in national claims to more exten- 
sive internal and territorial waters, documented, infra, in this vol- 
ume, will have on the problem raised by the Situation. The Fish- 
eries decision, by expanding the area of internal waters in which 
it has been customarily understood no right of innocent passage 
exists, and the similar effect of certain national claims, will 
restrict the sea space available to belligerent operations. It should 
be noted that the International Law Commission in its final Report 
on the Law of the Sea provided in Article 5, paragraph 3, that, 
where straight base lines, newly established, enclose as internal 
waters areas previously considered high or territorial seas, a 
right of innocent passage through such waters should be pre- 
served whenever such waters have normally been used for in- 
ternational traffic. Whether such an exception could now be im- 
plied through such waters for the "mere passage" provided by 
Article X of Hague Convention XIII (1907) is very doubtful. 



29 

To the degree the decision and other recent claims have the con- 
sequence of extending the width of the territorial water belt itself, 
it will both restrict the sea space available to belligerent opera- 
tions and broaden the area in which "innocent passage" is per- 
mitted. Such an expansion will markedly increase the neutral's 
task of surveillance and similarly enhance the probabilities of 
belligerent abuse of the "mere passage" privilege. These considera- 
tions, in turn, accentuate the danger of counteraction by an 
aggrieved belligerent. 

In view of these probable consequences, an extensive broaden- 
ing of the territorial sea will probably prove unacceptable to 
belligerents and should give pause to neutrals themselves. It could 
lead, on the one hand, to the increased insistence of belligerents 
on the right of passage despite the greater difficulties, and, on 
the other hand, to greater likelihood that neutrals would follow a 
policy of restricting or prohibiting innocent passage entirely. Such 
a policy of exclusion, suggested previously, would only be accept- 
able to belligerents if the traditional limits of territorial waters 
are maintained, as Professor Smith has indicated. 

Summary Conclusions 

The Problem Situation and the Altmark case both suggest the 
need for a more intensive study of the privilege of innocent 
passage through neutral territorial waters by belligerent warships. 
Whatever the differences of writers on the Altmark facts, it is 
clear that the provisions permitting "mere passage" are ambiguous 
and permit abuse, which in turn encourages the taking of forceful 
counteraction by an aggrieved belligerent. This can only lead to a 
breakdown in the maintenance of the rules of neutrality. To pre- 
serve the institution of neutrality, a tightening of the rule, or, pre- 
ferably, a rule of complete exclusion, (if present territorial water 
limits are maintained), would be desirable. The recent tendency 
to make claims to more extended internal and territorial waters 
makes the problem more urgent. Similarly, the development of 
the means of modern warfare requires greater Strictness in the 
rule. Even under the existing rule, the use of an abnormal route 
of long duration for a warlike "mission" is not for bona fide pur- 
poses of navigation and is prejudicial to the security interests of 
the coastal state and to the interests of the opposing belligerent. 
Such use must therefore be regarded as a violation of the rule. 
While the legality of the use of force in extreme situations must 
be admitted, a strengthening of the rule would serve to lessen, 
and, if possible, prohibit resort to such measures. 



30 

Solution 

(a) U has violated its duties as a neutral in permitting an 
abusive use of its territorial waters that was not for bona fide 
purposes of navigation and was prejudicial to the security inter- 
ests of the coastal state and to the interests of the Defense Pact 
as opposing belligerents. Such use is not the "mere passage" 
authorized by Article X of Hague Convention XIII. 

(b) While every breach of neutral duties does not authorize 
forceful counteraction by an aggrieved belligerent, in the case 
of such a grave violation as the instant Situation presents, the 
Defense Pact States were legally entitled to use force to prevent 
irremediable injury arising from "LPs breach of neutrality. 

APPENDIX I TO SITUATION I 

Correspondence between His Majesty's Government in the 
United Kingdom and the Norwegian Government respecting the 
German Steamer Altmark. (London, 17th February-15th March 
1940. Norway No. 1 (1950), British Command Paper No. 8012.) 

Note. This correspondence, taken from British Command Paper No. 8012, 
printed in 1950, is reprinted below for convenient reference. The Document 
(Cmd. 8012) is British Crown copyright, and permission to reprint in this 
volume has been obtained from the Controller of Her Britannic Majesty's 
Stationery Office through the courtesy of the British Foreign Office by a letter 
to the Editor dated 26 September 1956. The early official statements by the 
British, German, and Norwegian Governments have been available since 1941. 
See Documents on International Affairs, Norway and the War (Royal 
Institute of International Affairs, (1941), pp. 33-38). 

CORRESPONDENCE BETWEEN HIS MAJESTY'S GOVERNMENT 
IN THE UNITED KINGDOM AND THE NORWEGIAN GOVERN- 
MENT RESPECTING THE GERMAN STEAMER "ALTMARK" 

London, 17th February-15th March, 1940 
FOREWORD 

The Altmark was, from the point of view of international law 
and practice, of considerable importance as a legal precedent. The 
incident has been dealt with by various distinguished publicists 
on international law but because the full correspondence has never 
been published they have not had all the necessary information 
before them in order fully to appreciate it from the legal point of 
view. Consequently, it is thought to be desirable, after consultation 
with the Norwegian Government, to publish the texts of the ex- 
changes of notes which took place between the two Governments 
between 17th February and 15th March 1940. 



31 

No. 1 

Record of Conversation Between Viscount Halifax and Monsieur 

Colban 

Important 

I asked the Norwegian Minister to call this afternoon and in- 
formed him that I thought his Government should be placed in 
possession of certain facts already known to us in connection with 
the liberation of the prisoners from the steamship Altmark. 

2. The British authorities had been in touch with this ship 
for some time. It was notorious that she had participated in the 
depredations of the Graf Spee, to which she had been acting as 
auxiliary. We had the best of reasons, confirmed by the British 
subjects taken off the Graf Spee and previously imprisoned in the 
Altmark, to believe that there were some three or four hundred 
British subjects aboard who had been living for weeks under in- 
tolerable conditions. The Altmark was also credibly believed to 
possess offensive armaments. The record of this ship must have 
been well known to the Norwegian Government and in the view 
of His Majesty's Government it was incumbent on the Norwegian 
authorities, when she entered Bergen and requested passage 
through Norwegian territorial waters, to subject her to a most 
careful search. 

3. His Majesty's Government would be grateful for full par- 
ticulars as to how this search was conducted and what facts were 
discovered. Reports received by His Majesty's Government in- 
dicated that the examination had been perfunctory, and in any 
case prisoners had not been discovered. On evidence received 
hitherto, it appeared to His Majesty's Government that the Nor- 
wegian Government had failed in their duties as neutrals. It had 
been suggested to me that the result of the examination would 
have been such that the Norwegian Government would have felt 
obliged to release the prisoners. His Majesty's Government would 
be glad to know what action the Norwegian authorities would 
have taken if the prisoners had been found. Surely they would 
either have released them or at any rate held them pending a full 
examination of the position. 

4. In brief, if no prisoners had been found when the ship was 
boarded, the Norwegian Government would have had an excellent 
ground for complaint. The prisoners, however, having been found, 
His Majesty's Government considered that they had every right to 
complain that the search carried out had been perfunctory. 

5. The legal question, however, appeared to me of less im- 



32 

portance than the fact that three or four hundred British subjects 
had been kept for many weeks in conditions in which no decent 
person would have kept a dog. The fact that the Norwegian Gov- 
ernment did not find a pretext to detain the ship or even to take 
off the sick among the prisoners appeared to His Majesty's Govern- 
ment to give them good cause for complaint against the Norwegian 
Government. In reply to an enquiry, I informed the Minister that 
the action taken had been with the full assent of His Majesty's 
Government. In view of the urgency, prior notification to the Nor- 
wegian Government had not been possible. His Majesty's Govern- 
ment did not deny that Norwegian territorial waters had tech- 
nically been infringed. They felt, however, that the case against 
the German authorities was so overwhelming that they were 
justified in pressing that the ship should be interned. 

6. The Norwegian Minister stated that he had no information 
regarding the search at Bergen, but that he would inform his 
Government at once of what I had said and invite replies to the 
various questions asked. 

7. I then turned to the note which the Minister had handed 
to me. 1 I observed that I took note of his Government's protest 
and their reservation of rights, and would furnish a detailed reply 
as soon as possible. I observed, however, that the Norwegian 
Government would surely not seriously expect His Majesty's Gov- 
ernment to return the prisoners; to which the Minister replied 
that this was indeed their intention, as the only means of restoring 
the case to a legal basis. 

Foreign Office, 

17th February, 1940. 



No. 2 

Monsieur Colban to Viscount Halifax 

Royal Norwegian Legation, 
London, 17th February, 1940. 
My Lord, 

On the 16th February, 1940, in the afternoon the German 
steamer Altmark was in Norwegian territorial waters, escorted 
by a Norwegian torpedo-boat. At 4:30 p.m. two British destroyers 
fired shots of warning to stop the Altmark in the neighborhood of 
the Foksteinene. The Norwegian torpedo-boat protested against 



1 Document No. 2. 



33 

this. The Altmark went in the Jossingfjord, and the destroyers 
followed and remained at the entrance of the Fjord. The Nor- 
wegian torpedo-boat once more protested, and the English force, 
which was then increased to one cruiser and five destroyers moved 
outside the three nautical miles limit. 2 Some time later a destroyer 
again entered Norwegian territorial waters and went close by land 
and used searchlight. At 11 p.m. the English cruiser moved into 
the Fjord and boarded the Altmark. A struggle followed, and it is 
reported that several Germans were killed and wounded. It is 
stated that about 400 British subjects on the Altmark were taken 
on board the British ship which thereafter went out. 

The Norwegian guard-ships consisted of two small torpedo- 
boats, and they could in face of the overwhelming British force 
do nothing but protest with energy. 

I have been instructed immediately to bring this to the British 
Government's notice and to lodge a serious protest against this 
grave violation of Norwegian territorial waters, which has caused 
strong indignation, as it took place in the interior of a Norwegian 
Fjord, and thus cannot be due to any mistake or difference of 
opinion with regard to the limit of the territorial waters. 

The Norwegian Government must demand that the British Navy 
be instructed in future to respect Norwegian Sovereignty. 



2 The following is a translation of a note regarding Norwegian neutrality 
which was addressed to His Majesty's Minister at Oslo by the Royal Nor- 
wegian Ministry for Foreign Affairs on 4th September, 1939. 
"Sir, 

I have the honour to send you herewith a copy of the Royal Proclamation 
of the 3rd inst. on Norway's neutrality in the war between Great Britain and 
France on the one side, and Germany on the other. 

I have also the honour to inform you that it has been laid down by Royal 
Resolution of the 3rd inst. that — 

'(1) In the war which has broken out between foreign Powers, Norway 
will maintain complete neutrality. The rules and regulations concern- 
ing neutrality which are in force (see the Royal Proclamation of 13th 
May, 1938) will not be applied outside a distance of three nautical 
miles from the coast. 
(2) In every other respect the regulations regarding territorial waters, 

hitherto in force, remain valid.' 
This decision has been taken in order to avoid the difficulties which might 
arise in consequence of doubt as to the extent of territorial waters. The deci- 
sion is in conformity with the practice followed in the Great European War, 
1914-18. 

In requesting you to inform your Government of the above, I beg you to 
accept the assurance of my highest consideration. 

(Sd.) Halvdan Koht." 



34 

The Norwegian Government expect of the British Government 
that they will hand the prisoners over to the Norwegian Govern- 
ment and make due compensation and reparation. 

I have, &c. 
(Sd.) Erik Colban. 



No. 3 

Monsieur Colban to Viscount Halifax 

Royal Norwegian Legation, 
London, 24th February, 1940. 
My Lord, 

I have had the honour to give you to-day 3 verbal information 
in answer to certain questions raised by you in the Altmark case, 
and my Government hope thereby to have contributed to the 
establishment of the real facts of the case and to have made clear 
the view of the Norwegian Government on the matter. 

My Government hope that the British Government, after what 
has thus been stated, will feel themselves convinced that the Nor- 
wegian Government have acted in this case in strict accordance 
with International Law. 

If, however, the British Government should maintain their view, 
the Norwegian Government would propose that the difference of 
opinion between the two governments be submitted to arbitration, 
in such a manner as might be laid down in a special agreement. 

I have, &c. 
(Sd.) Erik Colban 



No. 4 

Aide-Memoire 

(Left with Viscount Halifax by Monsieur Colban on 
24 February 1940) 

Royal Norwegian Legation. 
The Altmark was visited by a Norwegian torpedo-boat in Nor- 
wegian territorial waters off Kristiansund the 14th February last. 
It was then declared that the ship was on her way from an 
American port (Port Arthur, Texas), to Germany and armed 
with small anti-aircraft guns for her own defence, which guns 



3 Document No. 4 



35 

had been dismantled before arrival in the territorial waters. She 
carried "Reichsdienstflagge" as a sign of her belonging to the 
German State. In Sognesjoen the vessel was hailed by a torpedo- 
boat and questions were asked, amongst these, whether persons 
were on board, who belonged to the armed forces of a belligerent 
country, or sailors domiciliated in or citizens of a belligerent 
country. The answer was that no such person was on board. When 
the Altmark was later on hailed by another Norwegian naval 
vessel north of Bergen, the captain of the Altmark refused his ship 
to be searched. As the ship was an auxiliary naval vessel and thus 
assimilated to a war vessel in respect of immunity, the Nor- 
wegian authorities had, in International Law, no power to proceed 
to further inquires, nor to prevent the continuation of the voyage 
in Norwegian territorial waters. 

The Altmark did not call at Bergen or at any other Norwegian 
port or anchorage, as seems to have been, erroneously, supposed. 
No question of a 24 hours limit thus arises. Neither The Hague 
Convention nor the Norwegian Neutrality Rules prescribe any 
limited time in case of passage. 

As the Altmark did not call at a Norwegian port, the Norwegian 
Government had not had to decide what ought to have been done 
with the ship or the prisoners, if that had been the case. Generally, 
it can only be said that the Norwegian Government would also in 
such a case have done their best to fulfill all their international 
obligations. 

The British Government have themselves emphasized the right 
of vessels of war to passage in neutral territorial waters. Refer- 
ence to this right was made in the memorandum presented to the 
Norwegian Foreign Minister by the British Minister in Oslo on 
the 23rd of May, 1939, to which memorandum the Norwegian 
Foreign Minister replied on the 2nd September, 1939. 

The Norwegian Government are desirous to underline that it 
was their duty in this case correctly to observe the rules of Inter- 
national Law to both sides. And the Norwegian Government do 
not have any doubt as to the meaning of these rules. 

As to the assertion that the British prisoners have been badly 
treated, and that Norway ought to have considered the situation 
from the humanitarian point of view, the Norwegian Government 
would like to say that they can understand the feelings of the 
Brtish Government at the thought that British prisoners were on 
board the Altmark. The Norwegian Government, however, con- 
sider that a neutral state cannot interfere between Belligerent 



36 

Powers or in their disputes without definite authority for so doing 
in a treaty or in some recognised rule of International Law. 



No. 5 

"Oral Communication" Made by Monsieur Colban on 

8th March 1940 

At the enquiry which has been made in Norway in the Altmark 
case, the following has been established: — 

On the 16th of February at 5 o'clock p.m., the Commander of 
the Cossack informed the Commander of the Norwegian torpedo- 
boat Kjell that he was instructed by the British Admiralty to 
liberate 400 British prisoners on board the Altmark. The Com- 
mander of the Kjell declared that he had no knowledge of the 
presence of prisoners on board, and that his instructions were to 
the effect that he should prevent violation of Norway's neutrality. 
The Commander of the Cossack proposed inspection on the spot. 
The Commander of the Kjell declined this and asked the British 
Commander to leave Norwegian territorial waters at once. 

At 11 p.m. on the same day, when the Cossack entered the 
Jossingfjord, her Commander replied to the Norwegian protest 
that he had instructions from the British Government to liberate 
the prisoners he had mentioned in the afternoon. 

Apart from what is stated above, no request for joint Nor- 
wegian-British inspection was made, and no other declaration 
was made on the Norwegian side as to the presence of prisoners 
on board. 

The Altmark used her wireless station illegally on the 15th 
February at 1:23 p.m. in a telegram to the German Legation in 
Oslo. The telegram was stopped by the Norwegian authorities, and 
the captain of the Altmark was at once informed that he had 
violated the regulations in force. He apologised. 



No. 6 

Viscount Halifax to Monsieur Colban 4 

Foreign Office, 15th March, 1940 
Your Excellency, 

On the 17th February last, I requested your Excellency to call 
upon me in order that I might give the Norwegian Government 



4 This note reached Oslo shortly before the German invasion of Norway 
and, in that circumstance, the Norwegian Government were not in a position 
to send a reply. 



37 

certain facts which had already come to the knowledge of His 
Majesty's Government in the United Kingdom in connexion with 
the liberation of the British prisoners from the German naval 
auxiliary vessel Altmark. 

At that interview I explained the general attitude of His 
Majesty's Government to the case as then known to them, and 
I requested certain information as to the action taken by the 
Norwegian Government and the results of that action. Your Excel- 
lency was good enough to undertake to obtain replies to the 
various questions which I had put to you, and at the same time 
handed me your note of the 17th February, in which the Nor- 
wegian Government lodged a serious protest against the grave 
violation of Norwegian territorial waters which they considered 
to have occurred, and stated that they expected His Majesty's 
Government to hand the British prisoners over to the Norwegian 
Government and make due compensation and reparation. 

On the 24th February I had the honour to have a further inter- 
view with you, at which you were so good as to convey to me the 
replies of your Government to the questions which I had put to 
you on the 17th and handed to me your note No. 79 of the 24th 
February, which stated that, in the light of the information given 
in reply to my questions, the Norwegian Government hoped that 
His Majesty's Government would feel convinced that the Nor- 
wegian Government had acted in this case in strict accordance 
with international law, but that if His Majesty's Government 
should maintain their view, the Norwegian Government would 
propose that the difference of opinion between the two Govern- 
ments should be submitted to arbitration. I now desire to make 
the following observations on your Excellency's notes and on the 
case in general. 

2. The facts of the case as now known to His Majesty's Gov- 
ernment, both from their own information and from the various 
statements made by the Norwegian Government, are as follows. 
The Altmark, a ship of about 18,000 tons gross, with a speed of 
approximately 25 knots, is a German naval auxiliary vessel. She 
appears in the 1939, official list of "Die Schiffe der deutschen 
Kriegsmarine," where she is described as a supply ship 
("Trosschiff"). There is no doubt that she should be treated in 
the same manner as a warship, and indeed the German official 
wireless, despite the fact that it at first described her as an 
"innocent merchant vessel," subsequently admitted that she was 
being used as a naval auxiliary vessel. 

3. The Altmark had been for a period of many weeks in 
attendance on the German armoured ship Admiral Graf Spee 



38 

during the later's operations in the Atlantic and elsewhere, and 
is known to have fuelled her at various times during that period. 
In particular, the crews of a considerable number of British mer- 
chant ships sunk by the Admiral Graf Spee were placed by her 
Commanding Officer on board the Altmark, and at the time of the 
destruction of the Admiral Graf Spee the number of these prison- 
ers amounted to about 300. After the destruction of the Admiral 
Graf Spee, the Altmark left the South Atlantic and endeavoured 
to return to Germany, the object of her voyage being clearly to 
complete the operation, which began with the capture of the 
prisoners in question, by their removal to Germany as prisoners 
of war. The prisoners were in charge of an armed guard composed 
of seamen from the Admiral Graf Spee. The British naval au- 
thorities, who were aware of the Altmark's intended return to 
Germany, had made the necessary dispositions to intercept her if 
she came through the North Sea. 

4. The Altmark, however, did not adopt this, the natural and 
ordinary route for a ship returning to a German port from the 
Atlantic. She entered Norwegian territorial waters on the 14th 
February at some point off the Trondhjem Fjord, and proceeded 
through those waters in a southerly direction. A little further 
south she was stopped by a Norwegian torpedo-boat, whose Com- 
mander made a request to inspect the ship. It appears that as the 
Altmark was regarded as a warship and carried the German State 
flag, the Norwegian officers considered that the only thing he was 
entitled to do was to ascertain that the ship really was what she 
purported to be. He examined her papers, which are stated to have 
been in order, and was informed that the ship was on her way 
from Port Arthur, Texas, to Germany and that she carried anti- 
aircraft guns for her own defence. 

The Altmark proceeded on her way, but further south at 
Sognesjoen she was hailed by another Norwegian torpedo-boat 
and was asked whether there were any persons on board who 
belonged to the armed forces of a belligerent country, or sailors 
domiciled in, or citizens of, a belligerent country. The answer was 
that no such person was on board. The ship was again allowed to 
proceed, but it appears that the Admiral Commanding at Bergen 
was not satisfied about her, and on the 15th February, when the 
Altmark was about 100 miles from Bergen, a Norwegian guard 
ship stopped her and asked to inspect her. This the Altmark's 
captain refused to allow, and the request was dropped. It was 
then discovered that the Altmark had been using her wireless 
in Norwegian territorial waters in contravention of the Norwegian 
neutrality regulations, and a complaint of this was made by the 



39 

Norwegian authorities; the captain made an apology, declaring 
that he was unacquainted with this prohibition, and the matter 
was apparently not pursued further. 

5. The Norwegian Government state that the Altmark did not 
call at Bergen or any other Norwegian port, and His Majesty's 
Government naturally accept this statement. There is, however, 
no doubt that she passed through the "Bergen defended area," a 
zone about 20 miles long from north to south, which constitutes 
one of the Norwegian "ports et espaces maritimes qui auront ete 
declares ports de guerre" which belligerent warships are forbidden 
to enter under Article 2 of the Norwegian Neutrality Regulations. 
Inasmuch as such a violation of their Regulations obviously could 
not have escaped the vigilance of the Norwegian authorities, His 
Majesty's Government assume that special permission was given 
by them to the Altmark to pass through the area in question, 
although the Regulations make no provision for any exceptions to 
this prohibition. As to the grounds on which such permission was 
requested and the reasons which led the Norwegian Government 
to grant it, His Majesty's Government have no information ; but 
they have no doubt as to the motives which led the ship to desire 
to pass through the area, and I shall return to this point later. 

6. The Altmark continued on her voyage south through Nor- 
wegian territorial waters, apparently escorted by a Norwegian 
torpedo-boat, and on the 16th February she was finally encountered 
by H.M.S. Cossack in the Jossingf jord in the circumstances with 
which the Norwegian Government are acquainted. The Command- 
ing Officer of H.M.S. Cossack had been instructed by the British 
Admiralty to propose to the Commander of the Norwegian tor- 
pedo-boat that a joint Anglo-Norwegian guard should be placed 
on board the Altmark and a joint Anglo-Norwegian escort pro- 
vided to accompany her to Bergen in order that the matter might 
be properly investigated there by the Norwegian authorities. The 
Commanding Officer of H.M.S. Cossack has reported that he 
carried out these instructions, but that his proposal was declined 
by the Norwegian Commander in accordance, as he stated, with 
the instructions of his Government. The Commanding Officer of 
H.M.S. Cossack then invited the Norwegian Commander to accom- 
pany the British boarding party during their impending search of 
the Altmark, but he declined to do so. 

Your Excellency has informed me that, according to the in- 
formation in possession of your Government, the Commanding 
Officer of H.M.S. Cossack proposed inspection on the spot but that, 
apart from this, no request for joint Norwegian-British inspection 
was made. It is possible that some confusion may have arisen be- 



40 

tween inspection at Bergen and inspection on the spot, but His 
Majesty's Government have no doubt, in view of the specific in- 
structions which they had issued, and the reports which they had 
received, that both proposals were, in fact, made by the Command- 
ing Officer of H.M.S. Cossack. It is in any case clear, on your Ex- 
cellency's statement, that an offer of joint inspection was made 
and was declined by the Norwegian Commander. 

The Altmark was then boarded and the British prisoners re- 
leased and taken on board H.M.S. Cossack. The Altmark had 
previously attempted to ram H.M.S. Cossack and drive her ashore 
and resistance was offered to the boarding party by the German 
armed guard, the first shot being fired at a British warrant officer, 
who was wounded by it. There was some loss of life on the German 
side, but no injury to Norwegian life or property took place. I 
desire to add that at that point the Altmark had passed through 
some 400 miles of Norwegian territorial waters from the point 
at which she entered them, and the total length of those waters 
which she would in all probability have traversed if her voyage 
had not been interrupted is over 600 miles. 

7. Such being the circumstances of the case, His Majesty's Gov- 
ernment consider that it was the duty of the Norwegian Govern- 
ment, before allowing the Altmark to continue her voyage through 
Norwegian territorial waters, and particularly before granting her 
permission to pass through the "Bergen defended area," to ascer- 
tain by means of a proper investigation not only the status of the 
ship but also the nature and object of her voyage and of the use 
to which she was putting those waters. It is clear that the Nor- 
wegian Government failed to do so. On at least three occasions the 
Altmark was stopped by a Norwegian warship and there was 
ample opportunity for such an investigation, but none was made, 
and the proposals for investigation made by H.M.S. Cossack were 
refused. In consequence, the Norwegian Government were, accord- 
ing to their own statement, unaware throughout of the material 
fact that the Altmark had about 300 British prisoners on board. 

In this connexion His Majesty's Government attach particular 
importance to the incident at Sognesjoen, when a Norwegian 
torpedo-boat specifically enquired whether the Altmark had on 
board any sailors who were citizens of a belligerent country, and 
was answered in the negative. This indicates that the Commander 
of the Norwegian torpedo-boat had some suspicions as to the true 
position; but the really important consideration is that the fact 
of the Commander of the Altmark having found it necessary to 
reply to the enquiry by a barefaced lie shows that he at any rate 
considered the presence of the British prisoners on board to be so 



41 

material a circumstance that it was essential to keep it from 
coming to the knowledge of the Norwegian authorities, even at 
the sacrifice of his personal honour. He obviously felt that if this 
circumstance came to the knowledge of the Norwegian authorities, 
his purpose in using the protection of hundreds of miles of Nor- 
wegian territorial waters to ensure the safe conveyance of the 
prisoners to Germany would be frustrated. It is, in fact, clear that 
both the Norwegian Commander and the German Commander 
regarded the presence or absence of prisoners as a relevant cir- 
cumstance. The fact that the question was asked and that it was 
untruthfully answered seems to indicate that both Commanders 
took the same view as His Majesty's Government, indicated in 
paragraphs 14 to 16 of this note, of the application of Article 10 
of The Hague Convention No. XIII, 5 to the use being made by the 
Altmark of Norwegian territorial waters. 

The attempts of the Norwegian officers to make a proper in- 
vestigation of the case were met by refusals to allow the ship to be 
examined, backed by a deliberate lie, and no proper investigation, 
which would have immediately revealed the true situation, took 
place at all. 

8. The Norwegian Government seem to regard this result as 
inevitable. They appear to take the view that once the Altmark 
had been acknowledged as bearing the character of a warship, they 
had no right to make any investigation of the nature and object 
of her voyage and use of Norwegian waters, and were only entitled 
to look at her papers. His Majesty's Government cannot accept 
any such view. If a belligerent warship proposes to make use of 
neutral ports or territorial waters, the neutral Government has 
not only the right but a definite obligation to make such investiga- 
tion as may be required in order to satisfy itself that the use in 
question is proper and permissible under international law ; and if 
the warship declines to submit to such investigation, such a refusal 
(which inevitably suggests that the vessel's proceedings and pur- 
pose would not stand investigation) should be met by at least a 
refusal to allow her to continue to use the shelter of neutrality for 
her purpose. Any other view would open the door to wholesale 
infractions of neutral rights and obligations. While a neutral State 
cannot be expected to do more than employ the means at its dis- 
posal for the purpose of such investigation, in this case, those 
means, although amply sufficient, were not in fact employed. His 
Majesty's Government cannot but conclude that the action of the 
Norwegian Government in allowing their attempts at investiga- 



5 "Miscellaneous No. 6 (1908)," Col. 4175. 



42 

tion to be frustrated as they were, and permitting the Altmark to 
proceed as she did, constituted a failure to comply with the 
obligations of neutrality. 

9. There are, moreover, two particular incidents to which His 
Majesty's Government feel bound to call attention. The first is the 
discovery that the Altmark had been violating the Norwegian 
Regulations by using her wireless in Norwegian waters. His 
Majesty's Government consider that when this discovery had been 
made, it was incumbent upon the Norwegian authorities at least to. 
ascertain the nature of the use which the Altmark had been 
making of her wireless, since the nature of the communications 
might well have been such as to constitute not merely a breach 
of the Norwegian Regulations forbidding any transmission at all, 
but a serious infringement of neutrality which would have called 
for appropriate action by the Norwegian Government. But no 
such investigation was made, and the matter was regarded as dis- 
posed of by the apology made by the Altmark' s Commander. 6 

10. The second incident is the permission which must be pre- 
sumed to have been given to the Altmark to pass through the 
"Bergen defended area." There can be no doubt that the request 
was made because, while it is possible to avoid the area without 
leaving territorial waters, the passage in question is, in certain 
conditions, a dangerous one, and the Altmark might have been 
obliged to leave territorial waters and enter the open sea, in 
which case she would have been exposed to attack by British 
forces. It was in order to avoid any such possibility that the 
Altmark desired to pass through an area which is prohibited by 
the Norwegian Regulations to belligerent warships, and His 



6 It has since been learned that the telegram addressed to the German 
Legation in Oslo was at once intercepted by the Norwgian authorities, who 
therefore knew its contents. It was worded as follows: — 

"Werde soeben 1300 Uhr zum zweiten Male vom Norwegischen 
Zerstorer(n) zum Stoppen aufgefordert, nachdem bereits in drei 
Fallen Norwegischen Offizieren alle erbetene Auskunft erteilt 
worden ist. Muss gegen diese meines Erachtens neutralitatswidrige 
wiederholte Verzogerung energischen Protest erheben." 

[Translation] 

"Have just been ordered to stop for the second time, at 1300 hours, 
by a Norwegian destroyer, after Norwegian officers already on three 
occasions have been given all the information they requested. Must 
protest energetically against this repeated delay which in my opinion 
is a breach of neutrality." 

This is the telegram which was intercepted by the Norwegian authorities — 
see last paragraph of Document No. 5. 



43 

Majesty's Government cannot but regard the action of the Nor- 
wegian Government in granting permission as singularly difficult 
to justify in the circumstances. 

11. For the above reasons His Majesty's Government consider 
that, irrespective of the question whether the nature and object of 
the Altmark's voyage through Norwegian territorial waters were 
permissible, the fact that the Norwegian authorities permitted, 
and, indeed, went out of their way to facilitate, that voyage with- 
out making any proper enquiry into its nature and object con- 
stituted a definite failure on their part to comply with the obliga- 
tions of neutrality. It had become plain that, so far as the Nor- 
wegian Government were concerned, the Altmark would be allowed 
to effect her object of conveying the British prisoners to Germany 
through the shelter of Norwegian territorial waters, and His 
Majesty's Government consider, therefore, that in the circum- 
stances they were fully justified in taking action to prevent that 
result being achieved, and that they would, indeed, have failed 
in their duty if they had not done so. I desire to emphasize that 
the action of His Majesty's ships was confined to the minimum 
necessary to secure the release of the prisoners; despite the 
resistance offered, no attempt was made to capture or destroy the 
Altmark, or to make prisoners of the armed guard or crew. 

12. Quite apart from the questions whether the Norwegian 
Government exercised toward the Altmark the vigilance which was 
properly required of them as neutrals, His Majesty's Government 
desire to deal fully with other aspects of the case. It will be 
recalled that His Excellency the Norwegian Minister for Foreign 
Affairs explained in the Storting on the 19th February that, in the 
view of the Norwegian Government, the Altmark in any case had 
the right to pass through Norwegian territorial waters; and he 
also stated that "there is nothing in international law prohibiting 
a belligerent from conveying prisoners through neutral territory 
if the passage itself is legal" ; and I assume, therefore, that this 
represents the attitude of the Norwegian Government on the 
question of international law involved. 

13. To take the latter statement first, and assuming that the 
word "territory" is to be regarded as meaning "territorial waters" 
and not as including land, His Majesty's Government have never 
contended, and do not now contend, that in all circumstances the 
presence of prisoners on board a belligerent warship, which is 
legitimately visiting neutral jurisdiction, imposes on the neutral 
the duty of taking action such as the release of the prisoners. 
If a belligerent warship, paying a legitimate visit of not more than 
24 hours to a neutral port, has prisoners on board, this does not 



44 

in itself impose any obligation upon the neutral Government. If, 
however, the warship requires special facilities in the neutral port, 
such as repairs which cannot be executed within 24 hours, different 
considerations arise, as is shown by the fact that, after the arrival 
of the Admiral Graf Spee, at Montevideo, the Uruguayan Govern- 
ment effected the release of the prisoners (shipmates of those in 
the Altmark) who were on board her. The question is one which 
must depend on the facts of the particular case, or, in the words 
of Professor Koht, on the question whether "the passage itself is 
legal." 

14. The Norwegian Government contend that the passage of 
the Altmark, in the circumstances stated above, through hundreds 
of miles of Norwegian territorial waters was a legitimate opera- 
tion which they were bound to allow. They consider, in fact, that 
it was an instance of "the mere passage" ("le simple passage") 
through neutral territorial waters which, under Article 10 of The 
Hague Convention XIII, does not compromise the neutrality of 
the country concerned. From this view His Majesty's Government 
must emphatically dissent. They have frequently in the past in- 
sisted on the "right of innocent passage," and they were them- 
selves the authors, at The Hague Conference of 1907, of the 
proposal which ultimately took the form of Article 10. But it is 
an essential element of innocent passage that it should be innocent 
and their attitude on this point was expressed by Sir Ernest Satow, 
the first British delegate at The Hague Conference, when he spoke 
of "la liberte de traverser en temps de guerre comme en temps de 
paix les eaux territoriales." ''Innocent passage," which it was the 
object of Article 10 to allow, means passage through such ter- 
ritorial waters as would form part of a ship's normal course from 
the point of departure to her destination, and in particular through 
such territorial waters as form part of straits which provide access 
from one area of the sea to another. It is in this sense that His 
Majesty's Government have always understood and upheld the 
"right of innocent passage," and it is in this sense that it is 
recognised in international law. To regard it otherwise would 
clearly be to encourage the abuse of neutral jurisdiction. His 
Majesty's Government accordingly consider that for the reasons 
given in paragraph 8 above, it is the duty of a neutral, before 
exercising the liberty which Article 10 allows to permit "le simple 
passage," to satisfy itself that the passage is in fact of such a 
nature as to be permissible under that Article. 

15. But what was the nature and object of the Altmark's 
passage through Norwegian territorial waters? She was on her 
way from the South Atlantic to Germany by the north-about 



45 

route, and the object of her journey and of her passage through 
Norwegian waters was to complete with impunity the belligerent 
operation, which began with the capture of the British seamen 
and was continued with their conveyance across the Atlantic, by 
depositing them in Germany as prisoners of war. She had entered 
Norwegian territorial waters on the 14th February at a point off 
the Trondhjem Fjord, and on the 16th February she had proceeded 
through those waters for about 400 miles, and was in all prob- 
ability proposing to continue her passage through those waters 
until she reached their southerly limit, more than 200 miles 
further on. The Norwegian Government will not suggest that the 
circuitous route taken by the Altmark bears any relation whatever 
to the course normally adopted by shipping proceeding from the 
Atlantic north-about to Germany. The sole and the admitted 
object with which the Altmark took this highly remarkable course 
was to conclude her warlike operations under the protection of 
Norwegian neutrality for a distance of several hundred miles and 
a period of more than three days, so as to escape the fate which 
awaited her on the high seas at the hands of the British Fleet; 
and the importance which she attached to not leaving for one 
moment the shelter of those waters is illustrated by the incident 
of her passage through the Bergen defended area. 

16. His Majesty's Government most emphatically insist that 
such a voyage cannot be regarded as one which the Altmark was 
entitled to make, or the Norwegian Government bound to permit, 
as being an instance of the right of innocent passage which is 
recognised by international law and permitted under the title of 
"le simple passage" by Article 10 of The Hague Convention XIII. 
It could not even be accurately described as an abuse of that right 
to which it bears no relation whatever. It involves a claim by 
Germany (who has not scrupled to violate Norwegian neutrality 
when it suited her purpose to do so) to utilise the entire length of 
Norwegian territorial waters as and when she pleases, not in the 
ordinary course of navigation, but as a sort of protected corridor 
within the shelter of which her warships can complete, under the 
protection of Norwegian neutrality, the military operations in 
which they may have been engaged. This is not a claim which 
Germany is entitled to make or Norway to concede. 

17. Your Excellency stated to me that as the Altmark did not 
call at Bergen or at any other Norwegian port or anchorage, no 
question of a 24 hours' limit arises. This as it stands cannot be 
regarded as a correct statement of the law, since Article 12 of 
The Hague Convention XIII expressly forbids belligerent warships 
"de demeurer dans les ports et rades ou dans les eaux territoriales" 



46 

of a neutral Power for more than 24 hours. His Majesty's Govern- 
ment regard the question of passage through territorial waters as 
governed by Article 10 of the Convention and not by Article 12, 
and, in their view, the time limit of passage is not the fixed one 
of 24 hours prescribed by the latter Article but that which results 
from the very nature of "innocent passage" which I have described 
in paragraph 14 of the present Note ; but Article 12 is at any rate 
a refutation of the contention that no time limit exists if the ship 
does not enter a port or anchorage, and the existence of this gen- 
eral prohibition, applicable to both ports and territorial waters, 
reinforces the view which His Majesty's Government hold as to 
the nature of the passage which is permitted by Article 10. 

18. In this connexion there is one point to which I feel it neces- 
sary to refer. On the 19th February His Excellency the Norwegian 
Minister for Foreign Affairs made a statement in the course of 
which he said that in the summer of 1939 His Majesty's Govern- 
ment, in making certain enquiries of the Norwegian Government 
as to the Neutrality Regulations which they had adopted, had 
emphasized "that warships must have the right to sail in Nor- 
wegian territorial waters as long as they desired and without 
regard to the twenty-four hours' limit." His Majesty's Govern- 
ment are constrained to observe that there is no foundation for 
this statement. What His Majesty's Government did say, in their 
memorandum of 23rd May, 1939, was that "they have always 
maintained, and must continue to maintain, the existence of such 
a right of entry (i.e., into neutral territorial waters) for pur- 
poses of innocent passage." The object of this observation (which 
was correctly quoted in the statement issued by the Norwegian 
Foreign Department on the 21st February) was, of course, to 
maintain the principle of the right of innocent passage to which 
His Majesty's Government have always attached importance, and 
on which His Majesty's Government felt that some doubt might 
possibly be cast by certain provisions of the Norwegian Regula- 
tions. I readily accept the statement which your Excellency made 
to me on the 24th February, that Professor Koht's statement was 
due to his having relied upon his recollection of the contents of 
His Majesty's Government's memorandum; but as the statement, 
which was publicly attributed to His Majesty's Government, was 
never made by them, and never could have been made by them, 
since it would have been in direct contradiction of their views as 
to the right of innocent passage, I think it desirable that the true 
facts should be placed on record. 

19. His Majesty's Government must, therefore, conclude that 
the use made by the Altmark of Norwegian territorial waters was 



47 

not a legitimate exercise of the right of innocent passage, and 
ought not to have been permitted by the Norwegian Government ; 
and that the action of the Norwegian Government in permit- 
ting, and, indeed, facilitating, the Altmark's operations, and in 
making no proper enquiry as to the nature and object of those 
operations, constituted a failure to observe the obligations of 
neutrality. In the light of the facts and the above considerations, 
His Majesty's Government feel that they were fully justified in 
taking the action which in the circumstances they felt compelled 
to take. I desire to add that while in the above observations I have 
made no reference to the considerations arising from Norway's 
membership of the League of Nations, His Majesty's Government 
reserve their position in this respect. 

20. But I do not wish, particularly in view of the friendly 
relations which have existed for so long between our two sea- 
faring nations, to conclude upon this note. In your communication 
of the 24th February your Excellency suggested that the difference 
of opinion between the two Governments might be submitted to 
arbitration. Should the Norwegian Government feel it necessary 
to persist in this suggestion, His Majesty's Government would 
have several observations to make which appear to them to be 
extremely pertinent. But I venture to hope that, in view of the 
very full explanation which I have now given of the attitude of 
His Majesty's Government, the Norwegian Government will not 
find it necessary to press this suggestion further. I have thought 
it only proper to state the reasons which lead His Majesty's Gov- 
ernment to consider that they have just cause of complaint against 
the Norwegian Government ; but I fully recognise that your Excel- 
lency's Government found themselves in a difficult position, and I 
readily acknowledge, in particular, that they could not have been 
expected to assume that legitimate enquiries made on their behalf 
would have been met by shameless mendacity on the part of the 
German officer concerned. His Majesty's Government have warmly 
appreciated the fact that the Norwegian Government should have 
expressed understanding of the feelings of His Majesty's Govern- 
ment at the thought that British prisoners were on board the 
Altmark; and His Majesty's Government for their part are very 
willing to place on record their regret that they should have had 
no option but to adopt a course which, although in their opinion 
fully justified by the circumstances, admittedly involved taking 
action in Norwegian territorial waters. 

21. This being so, I venture to hope that the Norwegian Govern- 
ment, even if they are unable to accept all the contentions which 
I have put forward, will at any rate be not unwilling to recognise 



48 

that this case constitutes a clash not of right and wrong but of 
two rights ; and that they will feel able to agree that, each party 
having now expressed its point of view, the matter can be allowed 
to rest where it is without disturbing the traditionally friendly 
relations between our two countries. 

I have, &c. 
(Sd.) Halifax 



PART II 



RECENT DEVELOPMENTS IN THE 
LAW OF THE SEA— DOCUMENTS 
AND COMMENTARY 



PART II 

RECENT DEVELOPMENTS IN THE LAW OF THE SEA- 
DOCUMENTS AND COMMENTARY 

Page 

Note on Abbreviations 53 

Section I. Judicial and Arbitral Decisions 55 

Section II. Multilateral Proposals, Agreements, and Claims of Gen- 
eral Significance 157 

Section III. Fishery Agreements Relating to Conservation of Stock. . 295 

Section IV. Fishery Treaties Defining Fishery Limits 385 

Section V. Treaty on Continental Shelf and Supplementary Legisla- 
tion 397 

Section VI. National Legislation, Unilateral Claims Concerning the 
High Seas, the Territorial Sea, the Continental Shelf, and Fisheries. 
Representative Protests by Other States 401 

Section VII. Recent Important Maritime Conventions of General 

Interest 503 



51 



NOTE ON ABBREVIATIONS 



The following listing indicates the abbreviations that will be 
used in citing references of frequent occurrence in the remainder 
of this volume : 



(1) A/ (appropriate 

number cited) 

(2) A/CN.4/ (appropriate 

number cited) 

(3) A.J.I.L., 
A.J.I.L., Supp. 

(4) B.Y.B. 

(5) CFR, CFRSupp. 

(6) Cmd. 

(7) F.R. 

(8) I.C.J., Reports 

(9) I.C.J., Pleadings, 
1951, U.K.-Norway 



(10) I.C.L.Q. 



(11) I.L.Q. 

(12) I Malloy 
II Malloy 



(13) Mouton 



United Nations, Reports of the In- 
ternational Law Commission, Gen- 
eral Assembly, Official Records. 

United Nations, International Law 
Commission Documents. 

American Journal of International 
Law and Supplements thereto, by 
volume and year. 

British Yearbook of International 
Law, by volume and year. 

Code of Federal Regulations and 
Supplements thereto. 
British Command Papers 
Federal Register 

Reports of the Opinions of the In- 
ternational Court of Justice. 

International Court of Justice, 
Pleadings, Oral Arguments, Docu- 
ments, Fisheries Case (United 
Kingdom v. Norway), Volumes 
I-IV, (1951). Each volume is sepa- 
rately paged. 

International and Comparative 
Law Quarterly (1952- ), by 
volume and year. 

International Law Quarterly 
(1947-51). 

Treaties, Conventions, Interna- 
tional Acts, Protocols and Agree- 
ments between the United States 
and Other Powers, 1776-1909, com- 
piled by Malloy. 

M.W. Mouton, "The Continental 
Shelf", (1952) (The Hague, Mar- 
tinus Nijhoff). 



53 



54 



(14) N.W.C., 

I.L. Documents 

(15) III Redmond 



(16) Stat. 

(17) TIAS 



(18) 



Treaties in 
Force 



(19) IVTrenwith 



(20) U.N. Leg. Series I 
(1951) 



(21) UNTS 

(22) U.S. 

(23) U.S.C. 

(24) U.S.T. 



U.S. Naval War College, Interna- 
tional Law Documents, by years. 

Volume III of compilation by 
Malloy, 1910-1923, compiled by 
Redmond. 

United States Statutes at Large. 
Treaties and Other International 
Acts Series, issued singly in pam- 
phlets by the Department of State. 

A list of Treaties and other Inter- 
national Agreements of the United 
States in force as of October 31, 
1955, issued by the Department of 
State, Publication No. 6346. The 
same title, showing status of agree- 
ments as of October 31, 1956, has 
been issued by the State Depart- 
ment as Publication No. 6427. 
When used herein, it is identified 
by year and number. 
Volume IV of the compilations by 
Malloy and Redmond, 1923-37, 
compiled by Trenwith. 

United Nations Legislative Series, 
"Laws and Regulations on the Re- 
gime of the High Seas", Volume I, 
ST/LEG/SER. B/l, 11 January 
1951. Volume II, ST/LEG/SER. 
B/2, 14 December 1951, with the 
same title, which contains a col- 
lection of national legislation deal- 
ing with the problem of criminal 
jurisdiction, will not be referred 
to in this collection. 

United Nations Treaty Series. 
U.S. Supreme Court Reports. 
United States Code. 

United States Treaties and Other 
International Agreements 
(volumes published yearly begin- 
ning as of January 1, 1950.) 



SECTION I 



JUDICIAL AND ARBITRAL 

DECISIONS 



SECTION I 
JUDICIAL AND ARBITRAL DECISIONS 



Page 



A. Anglo-Norwegian Fisheries Case 59 

1. Introductory Note to Fisheries Case 59 

2. Bibliographical Note to Fisheries Case 62 

3. Judgment (Opinion of the Court) 65 

4. Individual Opinion of Judge Alvarez 94 

5. Separate Opinion of Judge Hsu Mo 103 

6. Dissenting Opinion of Sir Arnold McNair 107 

B. Abu Dhabi Arbitration Award 137 

1. Note 137 

2. Text of the Award 137 



57 



58 




A. Anglo-Norwegian Fisheries Case 
1. Introductory Note to the Fisheries Case 

The Norwegian government, by its Decree of July 12, 1935, 
established the limits of a Norwegian fisheries zone along the 
coast of Norway north of latitude 66° 28.8' North. The limits of 
this zone were measured by perpendiculars drawn from the outer 
islands in the skjaergaard, or belt of islands and rocks along the 
Norwegian coast and from base lines drawn between these islands, 
or from base lines drawn between the headlands of certain bays. 
It was Norway's position that the fisheries zone delimited by this 
Decree was her territorial sea. On September 28, 1949, the govern- 
ment of the United Kingdom filed with the registry of the Inter- 
national Court of Justice an Application asking that the legality of 
this delimitation be tested under the principles of international 
law. That Norway claims a four-mile belt of territorial waters was 
not an issue in the case. Judgment, rendered by the Court on 
December 18, 1951, was in favor of the Norwegian position. 

Twelve of the Court's fifteen judges participated in the decision. 
Judges Fabela (Mexico) and Krylov (U.S.S.R.) were absent and 
Judge Azevedo (Brazil) had recently died. In view of the im- 
portance of this case for the law of the sea, there are reproduced 
herein the Judgment of the Court, the individual concurring opin- 
ions of Judge Alvarez (Chile) and Judge Hsu Mo (China) , and the 
dissenting opinion of Judge McNair (United Kingdom). It is 
regretted that space limitations prevent the reprinting of the dis- 
senting opinion of Judge Read (Canada) as well. In brief sum- 
mary, it was his opinion that certain of the base lines were 
contrary to international law, that the Norwegian base-line "sys- 
tem" was contrary to international law, and that the coastline 
rule was an established rule of international law. In general ap- 
proach, his views resembled Judge McNair's, although he agreed 
with the majority of the Court on Indreleia and Vestfjord. He 
differed also with Judge McNair by expressing the opinion that 
the ten-mile rule for bays was established international law. 
Furthermore, he was of the opinion that the United Kingdom 
had not been shown to have acquiesced in the application of the 
Norwegian "system." Judge Read's dissenting opinion appears 
in I.C.J., Reports, 1951, pages 186-206. 

59 



60 

Judge Hackworth (U.S.A.) concurred in the Judgment of the 
Court but recorded that he did so on the basis that Norway had 
proved a historic title to the disputed areas. 

Immediately following this Introductory Note appears a Bib- 
liographical Note summarizing the voluminous discussion this case 
has generated. Consequently, the following comments will be con- 
fined to a few salient points. There can be no question that the 
decision is one of the most important ever rendered by an inter- 
national tribunal. Its significance for the law of the sea is evident. 
It will particularly affect the practice of States with respect to 
the methods for measuring base lines as well as having a significant 
impact on the extent of internal and territorial waters. It will also 
have some bearing on national claims to the continental shelf and 
fisheries. Even though the decision is not technically a precedent 
binding in future cases, it has already influenced and will con- 
tinue to influence in practice the claims of States and the reactions 
of other States to such claims. 

The Court's opinion is brief and not as explicit as would 
have been desirable in view of the importance of the questions 
raised. As a composite opinion of judges of varying nationalities 
and legal training, this is perhaps to be expected. It is clear, how- 
ever, that the decision adopts a broad test of reasonableness in 
judging the claims of coastal States to the breadth of their ter- 
ritorial sea and the means adopted by them for measuring the 
base lines which serve as the boundary between territorial and 
internal waters. While the Court emphasized that the claims of 
coastal States are governed by international law, the standards 
laid down are somewhat indefinite, and are partially subjective 
in character. Account is taken, for example, of important economic 
interests of a region's inhabitants, of sufficiently long standing, 
as a factor along with geographic and historic considerations bear- 
ing on the reasonableness of the claim. The limitations on the use 
of this subjective factor are carefully stated by the International 
Law Commission in Article 5, Paragraph 1, fourth sentence, and 
Paragraph 4 of the Commentary thereto, both reprinted, infra. 
While frequent reference is made to the asserted unique character 
of the Norwegian coast, the decision will inevitably have broader 
implications. 

Thus, the Court's opinion makes clear that the so-called coast- 
line rule can no longer be regarded as having any universal 
validity. Neither the three-mile rule nor the breadth of the ter- 
ritorial sea in general were, however, directly at issue in the 
case. Only future adjudications can delineate the limits of the 
Court's principles with any certainty. The treatment of the histor- 



61 

ical evidence in the opinion of the Court was particularly terse. 
The ruling of the Court that the United Kingdom had acquiesced in 
the Norwegian "system" is subject to question. If followed, it 
will put a heavy burden in the future on States to discover the 
legislation of other States and to protest promptly if the legislation 
is objectionable. With the lack of compulsory jurisdiction in inter- 
national tribunals, this will tend to encourage the growth of dis- 
putes without adequate means for resolution. This tendency is 
already evident in claims that have been made before and since 
the decision. For example, the claim of Chile-Ecuador-Peru to a 
maritime zone of 200 miles has been challenged by the United 
States and other States. The United States has formally proposed 
that these differences of view be submitted to the International 
Court of Justice for decision. Chile-Ecuador-Peru, which have not 
accepted the compulsory jurisdiction of that Court, have not been 
willing to agree to the United States proposal. Despite the sweep 
of the Court's decision, there can be little doubt that the decision 
does not justify such extravagant claims as Chile-Ecuador-Peru 
and some other States have made. The International Law Com- 
mission's 1956 Report, reprinted, infra, takes this position in 
Article 3, Paragraph 2, in stating that international law does not 
permit an extension of the territorial sea beyond twelve miles. 

The concurring opinion of Judge Alvarez may make explicit the 
rationale of the opinion of the Court. It is probable that it goes 
beyond the Court in what it would accept in the way of claims by 
coastal States. It too, however, acknowledges the supremacy of 
international law and, in invoking the principle of abus de droit 
as a limitation, in essence adopts a very broad standard of rea- 
sonableness for judging the validity of coastal State claims. 

Despite the criticisms that have been made of various aspects 
of the Court's opinion, the decision itself has considerable merit. 
On the particular facts involved, the result reached is under- 
standable and not unreasonable. The United Kingdom case was 
based on a series of detailed and complex rules for which it was 
difficult to marshal convincing support in the practice of States. 
The standard of reasonableness, while vague, is sufficiently precise 
to serve as a basis for resolution of the conflicting claims of States 
to the use of the sea. If the international society had reached the 
stage of development in which legislative and judicial organs com- 
parable to the modern state existed, the standards laid down by 
the Court would be adequate. Under existing conditions, it will be 
difficult to resolve the conflicts already present as well as the 
further disputes apt to be encouraged by the decision. 

The possible effect of the decision on claims to internal and 



62 

territorial waters has been mentioned. It is generally asserted that 
national sovereignty is supreme in internal waters. A striking 
aspect of the Fisheries decision is its practical effect, through 
approval of the straight-line method, in turning large areas of 
water previously considered as high or territorial seas into internal 
waters. Does it necessarily follow that there should be no right 
of innocent passage for normal navigational routes through such 
internal waters? This question was not decided in the Fisheries 
case. But Article 5, Paragraph 3, of the final Report of the 
International Law Commission on the Law of the Sea, reprinted, 
infra, provides in such cases that a right of innocent passage 
shall be recognized if the waters involved have normally been 
used for international traffic. 

The effect of the decision on the rights of belligerents and 
neutrals in the latter's territorial waters should be noted. Although 
the controversy concerned the validity of base lines for fishing 
grounds, the case was argued and decided on the basis of territorial 
waters. Consequently, if the usual assumption is made that the 
same limits and rules apply to the wartime situation, the decision 
could have serious consequences in this aspect of the subject. The 
possible implications are discussed, supra, in Situation I. 

2. Bibliographical Note to Fisheries Case 

In addition to the official report in I.C.J. Reports, 1951, pages 
116-206, the Judgment of the Court, with minor omissions, is print- 
ed in 46 A.J.I.L. (1952) , pages 348-370. The written and oral argu- 
ments and many documents appear in I. C.J. -Pleadings, Oral 
Arguments, Documents, Fisheries Case ( United Kingdom v. Nor- 
way) in four volumes. A fifth volume contains maps of the dis- 
puted areas in detail, which are marked to show the respective 
contentions of the parties. 

Comment on the case has been voluminous. Selected references 
to this commentary will be made. Counsel on both sides have been 
especially active in recording their reactions to the case and the 
decision. Professor Waldock, of counsel for the United Kingdom, 
discusses the case at length in 28 B.Y.B. (1951), pages 114-171. 
He concludes his criticism by stating that the Court's views were 
against the weight of state practice and juristic opinion without 
adequate explanation, and that disputed issues of fact were decided 
without referring to the facts adduced in opposition. He criticizes 
the vagueness of the Court's formula, and regrets its effect in en- 
couraging expansion of inland waters by unilateral claims. Wilber- 
force, also of counsel for the United Kingdom, emphasizes the 



63 

evidentiary problems in the case from the standpoint of the prac- 
tising lawyer, in 1952 Transactions of the Grotius Society, pages 
151-168. Johnson, similarly of counsel for the United Kingdom, 
discusses the opposing contentions and the various opinions in 
1 I.C.L.Q. (1952), pages 145-180. He regards the decision as not 
unreasonable if the premise that there was no existing rule of 
customary law was valid. He criticizes various aspects of the 
decision, and regrets that the only dissents were by British Com- 
monwealth judges. A note by Johnson on the bearing of the 
decision on the Tidelands dispute in the United States appears 
in Ibid., page 213. 

Bourquin, counsel for Norway, discusses the case in detail, in 
22 Acta Scandinavica Juris Gentium 101 et seq. (1952). Among 
other points, he believes the ten-mile rule for bays was the great 
victim of the decision, and that the implications of this point 
further enfeebled the three-mile rule for territorial waters, even 
though it was not at issue. He concedes the dangers of abuse in 
the economic-interests factor but argues that the Court's limita- 
tions on its use provide adequate protection. He stresses the 
connection of waters to the land as the key to use of the Court's 
formula for base lines. He defends the Court's decision as based 
on practice showing customary law under Article 38 of its Statute, 
and argues that the British position was based on proposed legis- 
lative solutions. Moreover, on the merits, the British position 
sought uniformity in an area where flexibility is essential. He 
concludes his defense of the Court's position by stressing the safe- 
guards against abuse in the Court's formulation, and that the 
Court itself in future cases will furnish the requisite protection. 
Unfortunately, he does not discuss the lack of compulsory juris- 
diction, which could easily make this safeguard illusory in practice. 

Evenson, retained as an expert for the Norwegian Government 
in the case, summarizes the contentions of the parties and the 
opinions in 46 AJ.I.L. (1952), pages 609-629. He concludes that 
the decision throws doubt on the three-mile rule, implicitly accepts 
the four-mile claim, and was most significant in treating the 
Indreleia as internal waters. He believes that the decision will 
permit the extension of the Norwegian "system" to its entire coast, 
as has in fact been done. See Norway, Section VI, B, 26, infra. He 
does not believe the decision supports the more extreme claims 
that have been made. 

Professor, now Judge, Lauterpacht, criticizes the decision and 
its effect on international judicial settlement in a letter to The 
Times of London, January 8, 1952, page 7, Cols. 6 and 7. There is 



64 

also a brief discussion of the case in Oppenheim (8th Ed., 1955, 
Vol. I, Peace, by Lauterpacht) at pages 488-490. Professor H.A. 
Smith has discussed the decision in the Supplement to the Second 
Edition (1954) of his The Law and Custom of the Sea, at pages 
217-222, and in the 1953 Year Book of World Affairs, pages 
283-307. In the former, he expresses the opinion that the United 
Kingdom position had little chance of acceptance and that the 
decision will have wide effect and in fact embodies state practice 
since 1930. He concludes that the three-mile rule is no longer law 
and every state is now free to draw its limits subject to the test 
of reasonableness. In the latter, a more extensive article, he ap- 
proves the decision and discusses the limitations of international 
judicial settlement in commenting on the views of Johnson, supra, 
with which he disagrees. Fitzmaurice, Legal Adviser to the British 
Foreign Office, discusses the broader implications of the decision 
under various juridical rubrics in 30 B.Y.B. (1953), pages 1-70, 
at pages 8-54. The decision itself is analyzed exhaustively by him 
in 31 Ibid. (1954), pages 371-429. His conclusions on delimitation 
as determined by the Court appear at pages 426-428. It is too 
detailed to summarize briefly but in general may be said to draw 
narrower implications from the decision than Smith, supra, and 
some other commentators have drawn. There is a brief comment 
by L.C. Green in 15 Modern Law Review 373 (July 1952) and by 
Honig in 102 Law Journal 397 (July 1952). The Parliamentary 
Undersecretary of State for Foreign Affairs stated that the effect 
of the decision on British practice was being considered, taking 
account of fisheries conventions to which the United Kingdom is 
a party. Parliamentary Debates, House of Lords, 175 Official 
Reports (No. 25, 1952), Tuesday, February 19, 1952, Cols. 
7 and 8. See Section VI, 35, b, 1, infra, for text of later official 
Statement. 

Judge Hudson summarizes the opinions and expresses approval 
of the decision in 46 AJ.I.L. (1952), pages 23-30. He states, in 
part: "* * * The judgment of the Court, supported by a firm 
majority, takes high place in the annals of international juris- 
prudence. It paves the way for a much sounder approach to the 
subject of territorial waters * * * and it clears up many of the 
confusions * * *." Ibid., page 30. Young comments briefly on 
the case in 38 American Bar Association Journal 243 (March 
1952), and concludes that any reasonable moderate delimitation 
would be valid. The decision is approved in a note in 65 Harvard 
Law Review 1453 (June 1952). A comment stressing the implica- 
tions of the decision for the United States appears in 4 Stanford 



65 

Law Review 546-558 (July 1952). McDougal and Schlei cite the 
decision in support of their standard of reasonableness for the law 
of the sea in general in 64 Yale Law Journal 648 (April 1955) at 
page 658, note 62, and page 665. Vaughan, 42 Geographical Re- 
view 302 (1952) summarizes the decision and points out the need 
that will arise for delineation on maps of exact limits which 
surface navigators and aviators can use. 

Auby approves of the decision in general, although he criticizes 
the Court's opinion on the acquiescence and notice points. Some 
of his comments are too sweeping, especially his treatment of 
the Truman Proclamations, infra, Section VI, A, Journal du Droit 
International (Clunet — 80th Year — No. 1), commencing on page 
24 in French and page 25 in English). Brinton comments on the 
decision and applies it to the 1951 Egyptian Royal Decree of 15 
January 1951 and to the Icelandic and Bulgarian laws in 8 Revue 
Egyptienne de Droit International 103 (1952) at pages 104-112. 
The Bulgarian, Egyptian, and Icelandic laws, which are discussed, 
infra, Section VI, B, 4, 13, and 18, resemble in various degrees 
the Norwegian "system". There is a brief comment on the case 
by the New Zealand Department of External Affairs in 28 Uni- 
versity of New Zealand Laiv Journal (July 22, 1952), at page 
201. The conclusion is that the rigidity of the freedom of the seas 
must yield to an orderly regime consistent with the needs of the 
international community. 

3. Judgment (Opinion of the Court) 

Present : President BASDEVANT ; Vice-President GUER- 
RERO ; Judges ALVAREZ, HACKWORTH, WINIAR- 
SKI, ZORICIC, DE VISSCHER, Sir Arnold McNAIR, 
KLAESTAD, BADAWI PASHA, READ, HSU MO; 
Registrar HAMBRO. 

In the Fisheries case, 

between 
the United Kingdom of Great Britain and Northern Ireland, 
represented by: 

Sir Eric Beckett, K.C.M.G., K.C., Legal Adviser to the Foreign 
Office, 

as Agent, 

assisted by: 

The Right Honourable Sir Frank Soskice, K.C., M.P., Attorney- 
General, 

Professor C.H.M, Waldock, C.M.G., O.B.E,, K.C., Chichele Pro- 



66 

fessor of Public International Law in the University of 
Oxford, 

Mr. R.O. Wilberforce, Member of the English Bar, 

Mr. D.H.N. Johnson, Assistant Legal Advisor, Foreign Office, 

as Counsel, 

and by: 

Commander R.H. Kennedy, O.B.E., R.N. (retired), Hydro- 
graphic Department, Admiralty, 

Mr. W.H. Evans, Hydrographic Department, Admiralty, 

M. Annaeus Schjodt, Jr., of the Norwegian Bar, Legal Adviser 
to the British Embassy in Oslo. 

Mr. W.N. Hanna, Military Branch, Admiralty, 

Mr. A.S. Armstrong, Fisheries Department, Ministry of Agri- 
culture and Fisheries, 

as expert advisers ; 

and 
the Kingdom of Norway, 
represented by: 

M. Sven Arntzen, Advocate at the Supreme Court of Norway, 

as Agent and Counsel, 

assisted by : 

M. Maurice Bourquin, Professor at the University of Geneva 
and at the Graduate Institute of International Studies, 

as Counsel, 

and by: 

M. Paal Berg, former President of the Supreme Court of 
Norway, 

Mr. C. J. Hambro, President of the Odelsting, 

M. Frede Castberg, Professor at the University of Oslo, 

M. Lars J. Jorstad, Minister Plenipotentiary, 

Captain Chr. Meyer, of the Norwegian Royal Navy, 

M. Gunnar Rollefsen, Director of the Research Bureau of the 
Norwegian Department of Fisheries, 

M. Reidar Skau, Judge of the Supreme Court of Norway, 

M.E.A. Colban, Chief of Division in the Norwegian Royal 
Ministry for Foreign Affairs, 

Captain W. Coucheron-Aamot, of the Norwegian Royal Navy, 

M. Jens Evensen, of the Bar of the Norwegian Courts of Appeal, 

M. Andre Salomon, Doctor of Law, 

as experts, 

and by: 

M. Sigurd Ekeland, Secretary to the Norwegian Royal Ministry 
for Foreign Affairs, 

as secretary, 



67 

THE COURT, 

composed as above, 

delivers the following Judgment: 

On September 28th, 1949, the Government of the United King- 
dom of Great Britain and Northern Ireland filed in the Registry 
an Application instituting proceedings before the Court against 
the Kingdom of Norway, the subject of the proceedings being the 
validity or otherwise, under international law, of the lines of 
delimitation of the Norwegian fisheries zone laid down by the 
Royal Decree of July 12th, 1935, as amended by a Decree of 
December 10th, 1937, for that part of Norway which is situated 
northward of 66° 28.8' (or 66° 28' 48") N. latitude. The Applica- 
tion refers to the Declarations by which the United Kingdom and 
Norway have accepted the compulsory jurisdiction of the Court 
in accordance with Article 36, paragraph 2, of the Statute. 

This Application asked the Court 

"(a) to declare the principles of international law to 
be applied in defining the base-lines, by reference to 
which the Norwegian Government is entitled to delimit 
a fisheries zone, extending to seaward 4 sea miles from 
those lines and exclusively reserved for its own nationals, 
and to define the said base-lines in so far as it appears 
necessary, in the light of the arguments of the Parties, 
in order to avoid further legal differences between them ; 

(b) to award damages to the Government of the United 
Kingdom in respect of all interferences by the Norwegian 
authorities with British fishing vessels outside the zone 
which, in accordance with the Court's decision under (a) , 
the Norwegian Government is entitled to reserve for its 
nationals." 

Pursuant to Article 40, paragraph 3, of the Statute, the Applica- 
tion was notified to the States entitled to appear before the Court. 
It was also transmitted to the Secretary-General of the United 
Nations. 

The Pleadings were filed within the time-limits prescribed by 
Order of November 9th, 1949, and later extended by Orders of 
March 29th and October 4th, 1950, and January 10th, 1951. By 
application of Article 44, paragraph 2, of the Rules of Court, they 
were communicated to the Governments of Belgium, Canada, Cuba, 
Iceland, Sweden, the United States of America and Venezuela, at 
their request and with the authorization of the Court. On Septem- 
ber 24th, 1951, the Court, by application of Article 44, paragraph 



68 

3, of the Rules, at the instance of the Government of Norway, and 
with the agreement of the United Kingdom Government, au- 
thorized the Pleadings to be made accessible to the public. 

The case was ready for hearing on April 30th, 1951, and the 
opening of the oral proceedings was fixed for September 25th, 
1951. Public hearings were held on September 25th, 26th, 27th, 
28th and 29th, October 1st, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 
13th, 15th, 17th, 18th, 19th, 20th, 24th, 25th, 26th, 27th and 29th. 
In the course of the hearings, the Court heard Sir Eric Beckett, 
Agent, Sir Frank Soskice, Mr. Wilberforce and Professor Waldock, 
Counsel, on behalf of the United Kingdom Government; and M. 
Arntzen, Agent and Counsel, and Professor Bourquin, Counsel, 
on behalf of the Government of Norway. In addition, technical 
explanations were given on behalf of the United Kingdom Govern- 
ment by Commander Kennedy. 

At the end of his argument, the Agent of the United Kingdom 
Government presented the following submissions : 

"The United Kingdom submits that the Court should 
decide that the maritime limits which Norway is entitled 
to enforce as against the United Kingdom should be 
drawn in accordance with the following principles : 

(1) That Norway is entitled to a belt of territorial 
waters of fixed breadth — the breadth cannot, as a maxi- 
mum, exceed 4 sea miles. 

(2) That, in consequence, the outer limit of Norway's 
territorial waters must never be more than 4 sea miles 
from some point on the base-line. 

(3) That, subject to (4), (9) and (10) below, the 
base-line must be low-water mark on permanently dry 
land (which is part of Norwegian territory) or the 
proper closing line (see (7) below) of Norwegian in- 
ternal waters. 

(4) That, where there is a low-tide elevation situated 
within 4 sea miles of permanently dry land, or of the 
proper closing line of Norwegian internal waters, the 
outer limit of territorial waters may be 4 sea miles from 
the outer edge (at low tide) of this low-tide elevation. In 
no other case may a low-tide elevation be taken into 
account. 

(5) That Norway is entitled to claim as Norwegian 
internal waters, on historic grounds, all fjords and sunds 
which fall within the conception of a bay as defined in 



69 



international law, whether the proper entrance to the 
indentation is more or less than 10 sea miles wide. 

(6) That the definition of a bay in international law 
is a well-marked indentation, whose penetration inland 
is in such proportion to the width of its mouth as to con- 
stitute the indentation more than a mere curvature of the 
coast. 

(7) That, where an area of water is a bay, the prin- 
ciple which determines where the closing line should be 
drawn, is that the closing line should be drawn between 
the natural geographical entrance points where the in- 
dentation ceases to have the configuration of a bay. 

(8) That a legal strait is any geographical strait which 
connects two portions of the high seas. 

(9) That Norway is entitled to claim as Norwegian 
territorial waters, on historic grounds, all the waters of 
the fjords and sunds which have the character of a legal 
strait. Where the maritime belts, drawn from each shore, 
overlap at each end of the strait, the limit of territorial 
waters is formed by the outer rims of these two mari- 
time belts. Where, however, the maritime belts so drawn 
do not overlap, the limit follows the outer rims of each of 
these two maritime belts, until they intersect with the 
straight line, joining the natural entrance points of the 
strait, after which intersection the limit follows that 
straight line. 

(10) That, in the case of the Vestfjord, the outer 
limit of Norwegian territorial waters, at the south- 
westerly end of the fjord, is the pecked green line shown 
on Charts Nos. 8 and 9 of Annex 35 of the Reply. 

(11) That Norway, by reason of her historic title to 
fjords and sunds, is entitled to claim, either as territorial 
or as internal waters, the areas of water lying between 
the island fringe and the mainland of Norway. In order 
to determine what areas must be deemed to lie between 
the islands and the mainland, and whether these areas are 
territorial or internal waters, recourse must be had to 
Nos. (6) and (8) above, being the definitions of a bay 
and of a legal strait. 

(12) That Norway is not entitled, as against the 
United Kingdom, to enforce any claim to waters not 
covered by the preceding principles. As between Norway 
and the United Kingdom, waters off the coast of Norway 
north of parallel 66° 28.8' N., which are not Norwegian 



70 

by virtue of the above-mentioned principles, are high 
seas. 

(13) That Norway is under an international obliga- 
tion to pay to the United Kingdom compensation in re- 
spect of all the arrests since 16th September, 1948, of 
British fishing vessels in waters, which are high seas by 
virtue of the application of the preceding principles." 

Later, the Agent of the United Kingdom Government presented 
the following Conclusions, at the end of his oral reply : 

"The United Kingdom submits that the Court should 
decide that the maritime limits which Norway is en- 
titled to enforce as against the United Kingdom should 
be drawn in accordance with the following principles : 

(1) That Norway is entitled to a belt of territorial 
waters of fixed breadth — the breadth cannot, as a maxi- 
mum, exceed 4 sea miles. 

(2) That, in consequence, the outer limit of Norway's 
territorial waters must never be more than 4 sea miles 
from some point on the base-line. 

(3) That, subject to Nos. (4), (9) and (10) below, 
the base-line must be low-water mark on permanently 
dry land (which is part of Norwegian territory) or the 
proper closing line (see No. (7) below) of Norwegian 
internal waters. 

(4) That, where there is a low-tide elevation situated 
within 4 sea miles of permanently dry land, or of the 
proper closing line of Norwegian internal waters, the 
outer limit of Norwegian territorial waters may be 4 
sea miles from the outer edge (at low tide) of this low- 
tide elevation. In no other case may a low-tide elevation 
be taken into account. 

(5) That Norway is entitled to claim as Norwegian 
internal waters, on historic grounds, all fjords and sunds 
which fall within the conception of a bay as defined in in- 
ternational law (see No. (6) below), whether the proper 
closing line of the indentation is more or less than 10 
sea miles long. 

(6) That the definition of a bay in international law 
is a well-marked indentation, whose penetration inland is 
in such proportion to the width of its mouth as to con- 
stitute the indentation more than a mere curvature of 
the coast. 

(7) That, where an area of water is a bay, the prin- 



71 



ciple which determines where the closing line should be 
drawn, is that the closing line should be drawn between 
the natural geographical entrance points where the in- 
dentation ceases to have the configuration of a bay. 

(8) That a legal strait is any geographical strait 
which connects two portions of the high seas. 

(9) (a) That Norway is entitled to claim as Nor- 
wegian territorial waters, on historic grounds, all the 
waters of the fjords and sunds which have the character 
of legal straits. 

(b) Where the maritime belts drawn from each 
shore overlap at each end of the strait, the limit of terri- 
torial waters is formed by the outer rims of these two 
maritime belts. Where, however, the maritime belts so 
drawn do not overlap, the limit follows the outer rims of 
each of these two maritime belts, until they intersect with 
the straight line, joining the natural entrance points of 
the strait, after which intersection the limit follows that 
straight line. 

(10) That, in the case of the Vestf jord, the outer limit 
of Norwegian territorial waters, at the southwesterly 
end of the fjord, is the pecked green line shown on Charts 
Nos. 8 and 9 of Annex 35 of the Reply. 

(11) That Norway, by reason of her historic title to 
fjords and sunds (see Nos. (5) and (9) (a) above), is 
entitled to claim, either as internal or as territorial 
waters, the areas of water lying between the island 
fringe and the mainland of Norway. In order to deter- 
mine what areas must be deemed to lie between the island 
fringe and the mainland, and whether these areas are 
internal or territorial waters, the principles of Nos. (6), 
(7), (8) and (9) (b) must be applied to indentations 
in the island fringe and to indentations between the 
island fringe and the mainland — those areas which lie 
in indentations having the character of bays, and within 
the proper closing lines thereof, being deemed to be 
internal waters; and those areas which lie in indenta- 
tions having the character of legal straits, and within 
the proper limit thereof, being deemed to be territorial 
waters. 

(12) That Norway is not entitled, as against the 
United Kingdom, to enforce any claims to waters not 
covered by the preceding principles. As between Norway 
and the United Kingdom, waters off the coast of Norway 



72 



north of parallel 66° 28.8' N., which are not Norwegian 
by virtue of the above-mentioned principles, are high 
seas. 

(13) That the Norwegian Royal Decree of 12th July, 
1935, is not enforceable against the United Kingdom to 
the extent that it claims as Norwegian waters (internal 
or territorial waters) areas of water not covered by Nos. 

(D-(ll). 

(14) That Norway is under an international obliga- 
tion to pay to the United Kingdom compensation in 
respect of all the arrests since 16th September, 1948, of 
British fishing vessels in waters which are high seas by 
virtue of the application of the preceding principles. 

Alternatively to Nos. (1) to (13) (if the Court should 
decide to determine by its judgment the exact limits of 
the territorial waters which Norway is entitled to en- 
force against the United Kingdom) , that Norway is not 
entitled as against the United Kingdom to claim as Nor- 
wegian waters any areas of water off the Norwegian 
coasts north of parallel 66° 28.8' N. which are outside 
the pecked green line drawn on the charts which form 
Annex 35 of the Reply. 

Alternatively to Nos. (8) to (11) (if the Court should 
hold that the waters of the Indreleia are Norwegian in- 
ternal waters), the following are substituted for Nos. 
(8) 'to (11): 

I. That, in the case of the Vestfjord, the outer limit 
of Norwegian territorial waters at the southwesterly 
end of the fjord is a line drawn 4 sea miles seawards of 
a line joining the Skomvaer lighthouse at Rost to Kals- 
holmen lighthouse in Tennholmerne until the intersection 
of the former line with the arcs of circles in the pecked 
green line shown on Charts 8 and 9 of Annex 35 of the 
Reply. 

II. That Norway, by reason of her historic title to 
fjords and sunds, is entitled to claim as internal waters 
the areas of water lying between the island fringe and 
the mainland of Norway. In order to determine what 
areas must be deemed to lie between the island fringe and 
the mainland, the principles of Nos. (6) and (7) above 
must be applied to the indentations in the island fringe 
and to the indentations between the island fringe and 
the mainland — those areas which lie in indentations 
having the character of bays, and within the proper 



73 

closing lines thereof, being deemed to lie between the 
island fringe and the mainland." 

At the end of his argument, the Norwegian Agent presented, 
on behalf of his government, the following submissions, which 
he did not modify in his oral rejoinder : 

"Having regard to the fact that the Norwegian Royal 
Decree of July 12th, 1935, is not inconsistent with the 
rules of international law binding upon Norway, and 

having regard to the fact that Norway possesses, in 
any event, an historic title to all the waters included 
within the limits laid down by that decree, 

May it please the Court, 

in one single judgment, 

rejecting all submissions to the contrary, 

to adjudge and declare that the delimitation of the 
fisheries zone fixed by the Norwegian Royal Decree of 
July 12th, 1935, is not contrary to international law." 

* ♦ * 

The facts which led the United Kingdom to bring the case 
before the Court are briefly as follows. 

The historical facts laid before the Court establish that as the 
result of complaints from the King of Denmark and of Norway, 
at the beginning of the seventeenth century, British fishermen 
refrained from fishing in Norwegian coastal waters for a long 
period, from 1616-1618 until 1906. 

In 1906 a few British vessels appeared off the coasts of Eastern 
Finnmark. From 1908 onwards they returned in greater numbers. 
These were trawlers equipped with improved and powerful gear. 
The local population became perturbed, and measures were taken 
by the Norwegian Government with a view to specifying the 
limits within which fishing was prohibited to foreigners. 

The first incident occurred in 1911 when a British trawler was 
seized and condemned for having violated these measures. Negoti- 
ations ensued between the two Governments. These were inter- 
rupted by the war in 1914. From 1922 onwards incidents re- 
curred. Further conversations were initiated in 1924. In 1932, 
British trawlers, extending the range of their activities, appeared 
in the sectors off the Norwegian coast west of the North Cape, 
and the number of warnings and arrests increased. On July 27th, 
1933, the United Kingdom Government sent a memorandum to the 
Norwegian Government complaining that in delimiting the terri- 
torial sea the Norwegian authorities had made use of unjustifiable 



74 

base-lines. On July 12th, 1935, a Norwegian Royal Decree was 
enacted delimiting the Norwegian fisheries zone north of 66° 28.8' 
North latitude. 

The United Kingdom made urgent representations in Oslo in 
the course of which the question of referring the dispute to the 
Permanent Court of International Justice was raised. Pending the 
result of the negotiations, the Norwegian Government made it 
known that Norwegian fishery patrol vessels would deal leniently 
with foreign vessels fishing a certain distance within the fishing 
limits. In 1948, since no agreement had been reached, the Nor- 
wegian Government abandoned its lenient enforcement of the 1935 
Decree; incidents then became more and more frequent. A con- 
siderable number of British trawlers were arrested and con- 
demned. It was then that the United Kingdom Government in- 
stituted the present proceedings. 

♦ * * 

The Norwegian Royal Decree of July 12th, 1935, concerning the 
delimitation of the Norwegian fisheries zone sets out in the pre- 
amble the considerations on which its provisions are based. In this 
connection it refers to "well-established national titles of right", 
"the geographical conditions prevailing on the Norwegian coasts", 
"the safeguard of the vital interests of the inhabitants of the 
northernmost parts of the country" ; it further relies on the Royal 
Decrees of February 22nd, 1812, October 16th, 1869, January 5th, 
1881, and September 9th, 1889. 

The Decree provides that "lines of delimitation towards the 
high sea of the Norwegian fisheries zone as regards that part of 
Norway which is situated northward 66° 28. 8' North latitude . . . 
shall run parallel with straight base-lines drawn between fixed 
points on the mainland, on islands or rocks, starting from the final 
point of the boundary line of the Realm in the easternmost part 
of the Varangerfjord and going as far as Traena in the County 
of Nordland". An appended schedule indicates the fixed points 
between which the base-lines are drawn. 

The subject of the dispute is clearly indicated under point 8 of 
the Application instituting proceedings : "The subject of the dis- 
pute is the validity or otherwise under international law of the 
lines of delimitation of the Norwegian fisheries zone laid down by 
the Royal Decree of 1935 for that part of Norway which is situated 
northward of 66° 28.8' North latitude." And further on : ". . . the 
question at issue between the two Governments is whether the 
lines prescribed by the Royal Decree of 1935 as the base-lines for 
the delimitation of the fisheries zone have or have not been drawn 
in accordance with the applicable rules of international law." 



75 

Although the Decree of July 12th, 1935, refers to the Norwegian 
fisheries zone and does not specifically mention the territorial sea, 
there can be no doubt that the zone delimited by this Decree is 
none other than the sea area which Norway considers to be her 
territorial sea. That is how the Parties argued the question and 
that is the way in which they submitted it to the Court for 
decision. 

The Submissions presented by the Agent of the Norwegian 
Government correspond to the subject of the dispute as indicated 
in the Application. 

The propositions formulated by the Agent of the United King- 
dom Government at the end of his first speech and revised by 
him at the end of his oral reply under the heading of "Con- 
clusions" are more complex in character and must be dealt with 
in detail. 

Points 1 and 2 of these "Conclusions" refer to the extent of 
Norway's territorial sea. This question is not the subject of the 
present dispute. In fact, the 4-mile limit claimed by Norway was 
acknowledged by the United Kingdom in the course of the pro- 
ceedings. 

Points 12 and 13 appear to be real Submissions which accord 
with the United Kingdom's conception of international law as set 
out under points 3 to 11. 

Points 3 to 11 appear to be a set of propositions which, in the 
form of definitions, principles or rules, purport to justify certain 
contentions and do not constitute a precise and direct statement 
of a claim. The subject of the dispute being quite concrete, the 
Court cannot entertain the suggestion made by the Agent of the 
United Kingdom Government at the sitting of October 1st, 1951, 
that the Court should deliver a Judgment which for the moment 
would confine itself to adjudicating on the definitions, principles or 
rules stated, a suggestion which, moreover, was objected to by the 
Agent of the Norwegian Government at the sitting of October 5th, 
1951. These are elements which might furnish reasons in support 
| of the Judgment, but cannot constitute the decision. It further 
follows that even understood in this way, these elements may be 
taken into account only in so far as they would appear to be 
relevant for deciding the sole question in dispute, namely, the 
validity or otherwise under international law of the lines of 
delimitation laid down by the 1935 Decree. 

Point 14, which seeks to secure a decision of principle concern- 

! ing Norway's obligation to pay to the United Kingdom compensa- 

| tion in respect of all arrests since September 16th, 1948, of British 

fishing vessels in waters found to be high seas, need not be con- 



76 

sidered, since the Parties had agreed to leave this question to 
subsequent settlement if it should arise. 

The claim of the United Kingdom Government is founded on 
what it regards as the general international law applicable to the 
delimitation of the Norwegian fisheries zone. 

The Norwegian Government does not deny that there exist rules 
of international law to which this delimitation must conform. It 
contends that the propositions formulated by the United Kingdom 
Government in its "Conclusions" do not possess the character 
attributed to them by that Government. It further relies on its 
own system of delimitation which it asserts to be in every respect 
in conformity with the requirements of international law. 

The Court will examine in turn these various aspects of the 

claim of the United Kingdom and of the defence of the Norwegian 

Government. 

* * * 

The coastal zone concerned in the dispute is of considerable 
length. It lies north of latitude 66° 28.8' N., that is to say, north of 
the Arctic Circle, and it includes the coast of the mainland of 
Norway and all the islands, islets, rocks and reefs, known by the 
name of the "skjaergaard" (literally, rock rampart), together 
with all Norwegian internal and territorial waters. The coast of 
the mainland, which, without taking any account of fjords, bays 
and minor indentations, is over 1,500 kilometres in length, is of 
a very distinctive configuration. Very broken along its whole 
length, it constantly opens out into indentations often penetrating 
for great distances inland: the Porsangerfjord, for instance, 
penetrates 75 sea miles inland. To the west, the land configuration 
stretches out into the sea: the large and small islands, moun- 
tainous in character, the islets, rocks and reefs, some always 
above water, others emerging only at low tide, are in truth but an 
extension of the Norwegian mainland. The number of insular 
formations, large and small, which make up the "skjaergaard", is 
estimated by the Norwegian Government to be one hundred and 
twenty thousand. From the southern extremity of the disputed 
area to the North Cape, the "skjaergaard" lies along the whole of 
the coast of the mainland; east of the North Cape, the "skjaer- 
gaard" ends, but the coast line continues to be broken by large 
and deeply indented fjords. 

Within the "skjaergaard", almost every island has its large 
and its small bays; countless arms of the sea, straits, channels 
and mere waterways serve as a means of communication for the 
local population which inhabits the islands as it does the main- 
land. The coast of the mainland does not constitute, as it does in 



77 

practically all other countries, a clear dividing line between land 
and sea. What matters, what really constitutes the Norwegian 
coast line, is the outer line of the "skjaergaard". 

The whole of this region is mountainous. The North Cape, a 
sheer rock little more than 300 metres high, can be seen from a 
considerable distance; there are other summits rising to over a 
thousand metres, so that the Norwegian coast, mainland and 
"skjaergaard", is visible from far off. 

Along the coast are situated comparatively shallow banks, 
veritable under-water terraces which constitute fishing grounds 
where fish are particularly abundant; these grounds were known 
to Norwegian fishermen and exploited by them from time im- 
memorial. Since these banks lay within the range of vision, the 
most desirable fishing grounds were always located and identified 
by means of the method of alignments ("meds"), at points where 
two lines drawn between points selected on the coast or on islands 
intersected. 

In these barren regions the inhabitants of the coastal zone 
derive their livelihood essentially from fishing. 

Such are the realities which must be borne in mind in appraising 
the validity of the United Kingdom contention that the limits of 
the Norwegian fisheries zone laid down in the 1935 Decree are 
contrary to international law. 

The Parties being in agreement on the figure of 4 miles for the 
breadth of the territorial sea, the problem which arises is from 
what base-line this breadth is to be reckoned. The Conclusions of 
the United Kingdom are explicit on this point : the base-line must 
be low-water mark on permanently dry land which is a part of 
Norwegian territory, or the proper closing line of Norwegian 
internal waters. 

The Court has no difficulty in finding that, for the purpose of 
measuring the breadth of the territorial sea, it is the low-water 
mark as opposed to the high-water mark, or the mean between 
the two tides, which has generally been adopted in the practice of 
States. This criterion is the most favourable to the coastal State 
and clearly shows the character of territorial Waters as ap- 
purtenant to the land territory. The Court notes that the Parties 
agree as to this criterion, but that they differ as to its application. 

The Parties also agree that in the case of a low-tide elevation 
(drying rock) the outer edge at low water of this low-tide eleva- 
tion may be taken into account as a base-point for calculating the 
breadth of the territorial sea. The Conclusions of the United 
Kingdom Government add a condition which is not admitted by 
Norway, namely, that, in order to be taken into account, a drying 



78 

rock must be situated within 4 miles of permanently dry land. 
However, the Court does not consider it necessary to deal with 
this question, inasmuch as Norway has succeeded in proving, after 
both Parties had given their interpretation of the charts, that 
in fact none of the drying rocks used by her as base points is more 
than 4 miles from permanently dry land. 

The Court finds itself obliged to decide whether the relevant 
low- water mark is that of the mainland or of the "skjaergaard". 
Since the mainland is bordered in its western sector by the 
"skjaergaard", which constitutes a whole with the mainland, it 
is the outer line of the "skjaergaard" which must be taken into 
account in delimiting the belt of Norwegian territorial waters. 
This solution is dictated by geographic realities. 

Three methods have been contemplated to effect the application 
of the low-water mark rule. The simplest would appear to be the 
method of the trace parallele, which consists of drawing the outer 
limit of the belt of territorial waters by following the coast in all 
its sinuosities. This method may be applied without difficulty to 
an ordinary coast, which is not too broken. Where a coast is deeply 
indented and cut into, as is that of Eastern Finnmark, or where 
it is bordered by an archipelago such as the "skjaergaard" along 
the western sector of the coast here in question, the base-line 
becomes independent of the low-water mark, and can only be deter- 
mined by means of a geometric construction. In such circumstances 
the line of the low- water mark can no longer be put forward as a 
rule requiring the coast line to be followed in all its sinuosities; 
nor can one speak of exceptions when contemplating so rugged a 
coast in detail. Such a coast, viewed as a whole, calls for the ap- 
plication of a different method. Nor can one characterize as excep- 
tions to the rule the very many derogations which would be neces- 
sitated by such a rugged coast. The rule would disappear under 
the exceptions. 1 

It is true that the experts of the Second Sub-Committee of the 
Second Committee of the 1930 Conference for the codification of 
international law formulated the low-water mark rule somewhat 
strictly ("following all the sinuosities of the coast"). But they 



1 The last three sentences of this paragraph were somewhat distorted by 
printing errors and the following translation was later provided by the 
Registry of the International Court of Justice for the authoritative French 
text of the judgment. This corrected translation and an explanatory note 
appear in the Report of the International Law Commission, covering its 
Eighth Session, Supplement No. 9 (A/3159), p. 14. 

"[In such circumstances the line of the low-water mark can no 
longer be put forward as a rule requiring the coastline to be fol- 



79 

were at the same time obliged to admit many exceptions relating 
to bays, islands near the coast, groups of islands. In the present 
case this method of the trace parallele, which was invoked against 
Norway in the Memorial, was abandoned in the written Reply, 
and later in the oral argument of the Agent of the United Kingdom 
Government. Consequently, it is no longer relevant to the case. 
"On the other hand", it is said in the Reply, "the courbe tangente 
— or, in English, 'envelopes of arcs of circles' method is the method 
which the United Kingdom considers to be the correct one". 

The arcs of circles method, which is constantly used for deter- 
mining the position of a point or object at sea, is a new technique 
in so far as it is a method for delimiting the territorial sea. This 
technique was proposed by the United States delegation at the 
1930 Conference for the codification of international law. Its pur- 
pose is to secure the application of the principle that the belt of 
territorial waters must follow the line of the coast. It is not 
obligatory by law, as was admitted by Counsel for the United 
Kingdom Government in his oral reply. In these circumstances, 
and although certain of the Conclusions of the United Kingdom 
are founded on the application of the arcs of circles method, the 
Court considers that it need not deal with these Conclusions in so 
far as they are based upon this method. 

The principle that the belt of territorial waters must follow the 
general direction of the coast makes it possible to fix certain 
criteria valid for any delimitation of the territorial sea; these 
criteria will be elucidated later. The Court will confine itself at 
this stage to noting that, in order to apply this principle, several 
States have deemed it necessary to follow the straight base-lines 
method and that they have not encountered objections of prin- 
ciple by other States. This method consists of selecting appropriate 
points on the low-water mark and drawing straight lines between 
them. This has been done, not only in the case of well-defined bays, 
but also in cases of minor curvatures of the coast line where it was 
solely a question of giving a simpler form to the belt of territorial 
waters. 

It has been contended, on behalf of the United Kingdom, that 
Norway may draw straight lines only across bays. The Court is 

lowed in all its sinuosities. Nor can one characterize as exceptions 
to the rule the very many derogations which would be necessitated 
by such a rugged coast; the rule would disappear under the excep- 
tions. Such a coast, viewed as a whole, calls for the application of a 
different method; that is, the method of base-lines which, with- 
in reasonable limits, may depart from the physical line of the 
coast] . . ." 



80 

unable to share this view. If the belt of territorial waters must 
follow the outer line of the "skjaergaard", and if the method of 
straight base-lines must be admitted in certain cases, there is no 
valid reason to draw them only across bays, as in Eastern Finn- 
mark, and not also to draw them between islands, islets and rocks, 
across the sea areas separating them, even when such areas do not 
fall within the conception of a bay. It is sufficient that they should 
be situated between the island formations of the "skjaergaard", 
inter fauces terrarum. 

The United Kingdom Government concedes that straight lines, 
regardless of their length, may be used only subject to the condi- 
tions set out in point 5 of its Conclusions, as follows : 

"Norway is entitled to claim as Norwegian internal 
waters, on historic grounds, all fjords and sunds which 
fall within the conception of a bay as defined in inter- 
national law (see No. (6) below), whether the proper 
closing line of the indentation is more or less than 10 sea 
miles long." 



A preliminary remark must be made in respect of this point. 

In the opinion of the United Kingdom Government, Norway is 
entitled, on historic grounds, to claim as internal waters all fjords 
and sunds which have the character of a bay. She is also entitled 
on historic grounds to claim as Norwegian territorial waters all 
the waters of the fjords and sunds which have the character of 
legal straits (Conclusions, point 9), and, either as internal or as 
territorial waters, the areas of water lying between the island 
fringe and the mainland (point II and second alternative Con- 
clusion II). 

By "historic waters" are usually meant waters which are treated 
as internal waters but which would not have that character were 
it not for the existence of an historic title. The United Kingdom 
Government refers to the notion of historic titles both in respect 
of territorial waters and internal waters, considering such titles, 
in both cases, as derogations from general international law. In its 
opinion Norway can justify the claim that these waters are 
territorial or internal on the ground that she has exercised the 
necessary jurisdiction over them for a long period without opposi- 
tion from other States, a kind of possessio longi temporis, with 
the result that her jurisdiction over these waters must now be 
recognized although it constitutes a derogation from the rules in 
force. Norwegian sovereignty over these waters would constitute 
an exception, historic titles justifying situations which would 
otherwise be in conflict with international law. 



: 



81 

As has been said, the United Kingdom Government concedes 
that Norway is entitled to claim as internal waters all the waters 
of fjords and sunds which fall within the conception of a bay as 
denned in international law whether the closing line of the indenta- 
tion is more or less than ten sea miles long. But the United King- 
dom Government concedes this only on the basis of historic title ; 
it must therefore be taken that that Government has not aban- 
doned its contention that the ten-mile rule is to be regarded as a 
rule of international law. 

In these circumstances the Court deems it necessary to point 
out that although the ten-mile rule has been adopted by certain 
States both in their national law and in their treaties and con- 
ventions, and although certain arbitral decisions have applied it 
as between these States, other States have adopted a different 
limit. Consequently, the ten-mile rule has not acquired the au- 
thority of a general rule of international law. 

In any event the ten-mile rule would appear to be inapplicable 
as against Norway inasmuch as she has always opposed any 
attempt to apply it to the Norwegian coast. 

The Court now comes to the question of the length of the base- 
lines drawn across the waters lying between the various forma- 
tions of the "skjaergaard". Basing itself on the analogy with the 
alleged general rule of ten miles relating to bays, the United 
Kingdom Government still maintains on this point that the length 
of straight lines must not exceed ten miles. 

In this connection, the practice of States does not justify the 
formulation of any general rule of law. The attempts that have 
been made to subject groups of islands or coastal archipelagoes to 
conditions analogous to the limitations concerning bays (distance 
between the islands not exceeding twice the breadth of the ter- 
ritorial waters, or ten or twelve sea miles), have not got beyond 
the stage of proposals. 

Furthermore, apart from any question of limiting the lines to 
ten miles, it may be that several lines can be envisaged. In such 
cases the coastal State would seem to be in the best position to 
appraise the local conditions dictating the selection. 

Consequently, the Court is unable to share the view of the 
United Kingdom Government, that "Norway, in the matter of 
base-lines, now claims recognition of an exceptional system". As 
will be shown later, all that the Court can see therein is the 
application of general international law to a specific case. 

The Conclusions of the United Kingdom, points 5 and 9 to 11, 
refer to waters situated between the base-lines and the Norwegian 
mainland. The Court is asked to hold that on historic grounds 



82 

these waters belong to Norway, but that they are divided into two 
categories: territorial and internal waters, in accordance with 
two criteria which the Conclusions regard as well founded in 
international law, the waters falling within the conception of a bay 
being deemed to be internal waters, and those having the character 
of legal straits being deemed to be territorial waters. 

As has been conceded by the United Kingdom, the "skjaergaard" 
constitutes a whole with the Norwegian mainland; the waters 
between the base-lines of the belt of territorial waters and the 
mainland are internal waters. However, according to the argu- 
ment of the United Kingdom a portion of these waters constitutes 
territorial waters. These are inter alia the waters followed by the 
navigational route known as the Indreleia. It is contended that 
since these waters have this character, certain consequences arise 
with regard to the determination of the territorial waters at the 
end of this water-way considered as a maritime strait. 

The Court is bound to observe that the Indreleia is not a strait 
at all, but rather a navigational route prepared as such by means 
of artificial aids to navigation provided by Norway. In these cir- 
cumstances the Court is unable to accept the view that the 
Indreleia, for the purposes of the present case, has a status dif- 
ferent from that of the other waters included in the "skjaergaard". 

Thus the Court, confining itself for the moment to the Con- 
clusions of the United Kingdom, finds that the Norwegian Govern- 
ment in fixing the base-lines for the delimitation of the Norwegian 
fisheries zone by the 1935 Decree has not violated international 

law. 

* * * 

It does not at all follow that, in the absence of rules having the 
technically precise character alleged by the United Kingdom Gov- 
ernment, the delimitation undertaken by the Norwegian Govern- 
ment in 1935 is not subject to certain principles which make it 
possible to judge as to its validity under international law. The 
delimitation of sea areas has always an international aspect; it 
cannot be dependent merely upon the will of the coastal State as 
expressed in its municipal law. Although it is true that the act of 
delimitation is necessarily a unilateral act, because only the coastal 
State is competent to undertake it, the validity of the delimitation 
with regard to other States depends upon international law. 

In this connection, certain basic considerations inherent in the 
nature of the territorial sea, bring to light certain criteria which, 
though not entirely precise, can provide courts with an adequate 
basis for their decisions, which can be adapted to the diverse facts 
in question. 



83 

Among these considerations, some reference must be made to 
the close dependence of the territorial sea upon the land domain. 
It is the land which confers upon the coastal State a right to the 
waters off its coasts. It follows that while such a State must be 
allowed the latitude necessary in order to be able to adapt its 
delimitation to practical needs and local requirements, the draw- 
ing of base-lines must not depart to any appreciable extent from 
the general direction of the coast. 

Another fundamental consideration, of particular importance 
in this case, is the more or less close relationship existing between 
certain sea areas and the land formations which divide or sur- 
round them. The real question raised in the choice of base-lines is 
in effect whether certain sea areas lying within these lines are 
sufficiently closely linked to the land domain to be subject to the 
regime of internal waters. This idea, which is at the basis of the 
determination of the rules relating to bays, should be liberally 
applied in the case of a coast, the geographical configuration of 
which is as unusual as that of Norway. 

Finally, there is one consideration not to be overlooked, the 
scope of which extends beyond purely geographical factors: that 
of certain economic interests peculiar to a region, the reality and 
importance of which are clearly evidenced by a long usage. 

Norway puts forward the 1935 Decree as the application of a 
traditional system of delimitation, a system which she claims to be 
in complete conformity with international law. The Norwegian 
Government has referred in this connection to an historic title, the 
meaning of which was made clear by Counsel for Norway at the 
sitting on October 12th, 1951 : "The Norwegian Government does 
not rely upon history to justify exceptional rights, to claim areas 
of sea which the general law would deny; it invokes history, 
together with other factors, to justify the way in which it applies 
the general law." This conception of an historic title is in con- 
sonance with the Norwegian Government's understanding of the 
general rules of international law. In its view, these rules of inter- 
national law take into account the diversity of facts and, therefore, 
concede that the drawing of base-lines must be adapted to the 
special conditions obtaining in different regions. In its view, the 
system of delimitation applied in 1935, a system characterized by 
the use of straight lines, does not therefore infringe the general 
law ; it is an adaptation rendered necessary by local conditions. 

The Court must ascertain precisely what this alleged system of 
delimitation consists of, what is its effect in law as against the 
United Kingdom, and whether it was applied by the 1935 Decree 
in a manner which conformed to international law. 



84 

It is common ground between the Parties that on the question 
of the existence of a Norwegian system, the Royal Decree of 
February 22nd, 1812, is of cardinal importance. This Decree is 
in the following terms : "We wish to lay down as a rule that, in 
all cases when there is a question of determining the limit of our 
territorial sovereignty at sea, that limit shall be reckoned at the 
distance of one ordinary sea league from the island or islet farthest 
from the mainland, not covered by the sea; of which all proper 
authorities shall be informed by rescript/' 

This text does not clearly indicate how the base-lines between 
the islands or islets farthest from the mainland were to be drawn. 
In particular, it does not say in express terms that the lines must 
take the form of straight lines drawn between these points. But 
it may be noted that it was in this way that the 1812 Decree was 
invariably construed in Norway in the course of the 19th and 20th 
centuries. 

The Decree of October 16th, 1869, relating to the delimitation 
of Sunnmore, and the Statement of Reasons for this Decree, are 
particularly revealing as to the traditional Norwegian conception 
and the Norwegian construction of the Decree of 1812. It was by 
reference to the 1812 Decree, and specifically relying upon "the 
conception'' adopted by that Decree, that the Ministry of the 
Interior justified the drawing of a straight line 26 miles in length 
between the two outermost points of the "skjaergaard". The 
Decree of September 9th, 1889, relating to the delimitation of 
Romsdal and Nordmore, applied the same method, drawing four 
straight lines, respectively 14.7 miles, 7 miles, 23.6 miles and 11.6 
miles in length. 

The 1812 Decree was similarly construed by the Territorial 
Waters Boundary Commission (Report of February 29th, 1912, 
pp. 48-49), as it was in the Memorandum of January 3rd, 1929, 
sent by the Norwegian Government to the Secretary-General of 
the League of Nations, in which it was said : "The direction laid 
down by this Decree should be interpreted in the sense that the 
starting-point for calculating the breadth of the territorial waters 
should be a line drawn along the 'skjaergaard' between the furthest 
rocks and, where there is no 'skjaergaard' between the extreme 
points." The judgment delivered by the Norwegian Supreme 
Court in 1934 in the St. Just case, provided final authority for 
this interpretation. This conception accords with the geographical 
characteristics of the Norwegian coast and is not contrary to the 
principles of international law. 

It should, however, be pointed out that whereas the 1812 Decree 
designated as base-points "the island or islet farthest from the 






85 

mainland not covered by the sea", Norwegian governmental prac- 
tice subsequently interpreted this provision as meaning that the 
limit was to be reckoned from the outermost islands and islets 
"not continuously covered by the sea". 

The 1812 Decree, although quite general in its terms, had as 
its immediate object the fixing of the limit applicable for the 
purposes of maritime neutrality. However, as soon as the Nor- 
wegian Government found itself impelled by circumstances to 
delimit its fisheries zone, it regarded that Decree as laying down 
principles to be applied for purposes other than neutrality. The 
Statements of Reasons of October 1st, 1869, December 20th, 1880, 
and May 24th, 1889, are conclusive on this point. They also show 
that the delimitation effected in 1869 and in 1889 constituted a 
reasoned application of a definite system applicable to the whole 
of the Norwegian coast line, and was not merely legislation of 
local interest called for by any special requirements. The following 
passage from the Statement of Reasons of the 1869 Decree may 
in particular be referred to: "My Ministry assumes that the 
general rule mentioned above [namely, the four-mile rule] , which 
is recognized by international law for the determination of the 
extent of a country's territorial waters, must be applied here in 
such a way that the sea area inside a line drawn parallel to a 
straight line between the two outermost islands or rocks not 
covered by the sea, Svinoy to the south and Storholmen to the 
north, and one geographical league north-west of that straight line, 
should be considered Norwegian maritime territory." 

The 1869 Statement of Reasons brings out all the elements 
which go to make up what the Norwegian Government describes 
as its traditional system of delimitation : base-points provided by 
the islands or islets farthest from the mainland, the use of straight 
lines joining up these points, the lack of any maximum length for 
such lines. The judgment of the Norwegian Supreme Court in the 
St. Just case upheld this interpretation and added that the 1812 
Decree had never been understood or applied "in such a way as 
to make the boundary follow the sinuosities of the coast or to cause 
its position to be determined by means of circles drawn round the 
points of the 'Skjaergaard' or of the mainland furthest out to sea 
— a method which it would be very difficult to adopt or to enforce 
in practice, having regard to the special configuration of this 
coast." Finally, it is established that, according to the Norwegian 
system, the base-lines must follow the general direction of the 
coast, which is in conformity with international law. 

Equally significant in this connection is the correspondence 
which passed between Norway and France between 1869-1870. 



86 

On December 21st, 1869, only two months after the promulgation 
of the Decree of October 16th relating to the delimitation of 
Sunnmore, the French Government asked the Norwegian Govern- 
ment for an explanation of this enactment. It did so basing itself 
upon "the principles of international law". In a second Note dated 
December 30th of the same year, it pointed out that the distance 
between the base-points was greater than 10 sea miles, and that the 
line joining up these points should have been a broken line follow- 
ing the configuration of the coast. In a Note of February 8th, 1870, 
the Ministry for Foreign Affairs, also dealing with the question 
from the point of view of international law, replied as follows : 

"By the same Note of December 30th, Your Excellency 
drew my attention to the fixing of the fishery limit in the 
Sunnmore Archipelago by a straight line instead of a 
broken line. According to the view held by your Govern- 
ment, as the distance between the islets of Svinoy and 
Storholmen is more than 10 sea miles, the fishery limit 
between these two points should have been a broken line 
following the configuration of the coast line and nearer 
to it than the present limit. In spite of the adoption in 
some treaties of the quite arbitrary distance of 10 sea 
miles, this distance would not appear to me to have ac- 
quired the force of an international law. Still less would 
it appear to have any foundation in reality : one bay, by 
reason of the varying formations of the coast and sea- 
bed, may have an entirely different character from that 
of another bay of the same width. It seems to me rather 
that local conditions and considerations of what is prac- 
ticable and equitable should be decisive in specific cases. 
The configuration of our coasts in no way resembles that 
of the coasts of other European countries, and that fact 
alone makes the adoption of any absolute rule of universal 
application impossible in this case. 

"I venture to claim that all these reasons militate in 
favour of the line laid down by the Decree of October 
16th. A broken line, conforming closely to the indenta- 
tions of the coast line between Svinoy and Storholmen, 
would have resulted in a boundary so involved and so in- 
distinct that it would have been impossible to exercise 
any supervision over it. . . ." 

Language of this kind can only be construed as the considered 
expression of a legal conception regarded by the Norwegian 
Government as compatible with international law. And indeed, 



87 

the French Government did not pursue the matter. In a Note of 
July 27th, 1870, it is said that, while maintaining its standpoint 
with regard to principle, it was prepared to accept the delimitation 
laid down by the Decree of October 16th, 1869, as resting upon "a 
practical study of the configuration of the coast line and of the 
conditions of the inhabitants. " 

The Court, having thus established the existence and the con- 
stituent elements of the Norwegian system of delimitation, further 
finds that this system was consistently applied by Norwegian 
authorities and that it encountered no opposition on the part of 
other States. 

The United Kingdom Government has however sought to show 
that the Norwegian Government has not consistently followed the 
principles of delimitation which, it claims, form its system, and 
that it has admitted by implication that some other method would 
be necessary to comply with international law. The documents to 
which the Agent of the Government of the United Kingdom prin- 
cipally referred at the hearing on October 20th, 1951, relate to 
the period between 1906 and 1908, the period in which British 
trawlers made their first appearance off the Norwegian coast, and 
which, therefore, merits particular attention. 

The United Kingdom Government pointed out that the law of 
June 2nd, 1906, which prohibited fishing by foreigners, merely 
forbade fishing in "Norwegian territorial waters", and it deduced 
from the very general character of this reference that no definite 
system existed. The Court is unable to accept this interpretation, 
as the object of the law was to renew the prohibition against 
fishing and not to undertake a precise delimitation of the territorial 
sea. 

The second document relied upon by the United Kingdom 
Government is a letter dated March 24th, 1908, from the Minister 
for Foreign Affairs to the Minister of National Defence. The 
United Kingdom Government thought that this letter indicated 
an adherence by Norway to the low-water mark rule contrary to 
the present Norwegian position. This interpretation cannot be 
accepted; it rests upon a confusion between the low-water mark 
rule as understood by the United Kingdom, which requires that 
all the sinuosities of the coast line at low tide should be followed, 
and the general practice of selecting the low-tide mark rather than 
that of the high tide for measuring the extent of the territorial 
sea. 

The third document referred to is a Note, dated November 11th, 
1908, from the Norwegian Minister for Foreign Affairs to the 
French Charge d' Affaires at Christiania, in reply to a request for 



88 

information as to whether Norway had modified the limits of her 
territorial waters. In it the Minister said: "Interpreting Nor- 
wegian regulations in this matter, whilst at the same time con- 
forming to the general rule of the Law of Nations, this Ministry 
gave its opinion that the distance from the coast should be 
measured from the low-water mark and that every islet not con- 
tinuously covered by the sea should be reckoned as a starting- 
point." The United Kingdom Government argued that by the 
reference to "the general rule of the Law of Nations", instead of 
to its own system of delimitation entailing the use of straight lines, 
and, furthermore, by its statement that "every islet not con- 
tinuously covered by the sea should be reckoned as a starting- 
point", the Norwegian Government had completely departed from 
what it to-day describes as its system. 

It must be remembered that the request for information to 
which the Norwegian Government was replying related not to the 
use of straight lines, but to the breadth of Norwegian territorial 
waters. The point of the Norwegian Government's reply was that 
there had been no modification in the Norwegian legislation. More- 
over, it is impossible to rely upon a few words taken from a single 
note to draw the conclusion that the Norwegian Government had 
abandoned a position which its earlier official documents had 
clearly indicated. 

The Court considers that too much importance need not be 
attached to the few uncertainties or contradictions, real or ap- 
parent, which the United Kingdom Government claims to have 
discovered in Norwegian practice. They may be easily understood 
in the light of the variety of the facts and conditions prevailing 
in the long period which has elapsed since 1812, and are not such 
as to modify the conclusions reached by the Court. 

In the light of these considerations, and in the absence of con- 
vincing evidence to the contrary, the Court is bound to hold that 
the Norwegian authorities applied their system of delimitation 
consistently and uninterruptedly from 1869 until the time when 
the dispute arose. 

From the standpoint of international law, it is now necessary 
to consider whether the application of the Norwegian system en- 
countered any opposition from foreign States. 

Norway has been in a position to argue without any contradic- 
tion that neither the promulgation of her delimitation Decrees in 
1869 and in 1889, nor their application, gave rise to any opposi- 
tion on the part of foreign States. Since, moreover, these Decrees 
constitute, as has been shown above, the application of a well- 
defined and uniform system, it is indeed this system itself which 



89 

would reap the benefit of general toleration, the basis of an his- 
torical consolidation which would make it enforceable as against 
all States. 

The general toleration of foreign States with regard to the 
Norwegian practice is an unchallenged fact. For a period of more 
than sixty years the United Kingdom Government itself in no way 
contested it. One cannot indeed consider as raising objections the 
discussions to which the Lord Roberts incident gave rise in 1911, 
for the controversy which arose in this connection related to two 
questions, that of the four-mile limit, and that of Norwegian sov- 

' ereignty over the Varangerf jord, both of which were unconnected 
with the position of base-lines. It would appear that it was only 

; in its Memorandum of July 27th, 1933, that the United Kingdom 

i made a formal and definite protest on this point. 

The United Kingdom Government has argued that the Nor- 

| wegian system of delimitation was not known to it and that the 

I system therefore lacked the notoriety essential to provide the 

; basis of an historic title enforceable against it. The Court is un- 
able to accept this view. As a coastal State on the North Sea, 

i greatly interested in the fisheries in this area, as a maritime Power 
traditionally concerned with the law of the sea and concerned 
particularly to defend the freedom of the seas, the United Kingdom 
could not have been ignorant of the Decree of 1869 which had at 
once provoked a request for explanations by the French Govern- 
ment. Nor, knowing of it, could it have been under any mis- 
apprehension as to the significance of its terms, which clearly 
described it as constituting the application of a system. The same 
observation applies a fortiori to the Decree of 1889 relating to the 
delimitation of Romsdal and Nordmore which must have appeared 
to the United Kingdom as a reiterated manifestation of the Nor- 
wegian practice. 

Norway's attitude with regard to the North Sea Fisheries 
(Police) Convention of 1882 is a further fact which must at once 
have attracted the attention of Great Britain. There is scarcely 
any fisheries convention of greater importance to the coastal 
States of the North Sea or of greater interest to Great Britain. 
Norway's refusal to adhere to this Convention clearly raised the 
question of the delimitation of her maritime domain, especially 
with regard to bays, the question of their delimitation by means 
of straight lines of which Norway challenged the maximum length 
adopted in the Convention. Having regard to the fact that a few 
years before, the delimitation of Sunnmore by the 1869 Decree 
had been presented as an application of the Norwegian system, 
one cannot avoid the conclusion that, from that time on, all the 



90 






elements of the problem of Norwegian coastal waters had been 
clearly stated. The steps subsequently taken by Great Britain to 
secure Norway's adherence to the Convention clearly show that 
she was aware of and interested in the question. 

The Court notes that in respect of a situation which could only 
be strengthened with the passage of time, the United Kingdom 
Government refrained from formulating reservations. 

The notoriety of the facts, the general toleration of the inter- 
national community, Great Britain's position in the North Sea, 
her own interest in the question, and her prolonged abstention 
would in any case warrant Norway's enforcement of her system 
against the United Kingdom. 

The Court is thus led to conclude that the method of straight 

lines, established in the Norwegian system, was imposed by the 

peculiar geography of the Norwegian coast; that even before the 

dispute arose, this method had been consolidated by a constant 

and sufficiently long practice, in the face of which the attitude of 

governments bears witness to the fact that they did not consider 

it to be contrary to international law. 

* * * 

The question now arises whether the Decree of July 12th, 1935, 
which in its preamble is expressed to be an application of this 
method, conforms to it in its drawing of the baselines, or whether, 
at certain points, it departs from this method to any considerable 
extent. 

The schedule appended to the Decree of July 12th, 1935, in- 
dicates the fixed points between which the straight base-lines are 
drawn. The Court notes that these lines were the result of a 
careful study initiated by the Norwegian authorities as far back 
as 1911. The base-lines recommended by the Foreign Affairs Com- 
mittee of the Storting for the delimitation of the fisheries zone 
and adopted and made public for the first time by the Decree of 
July 12th, 1935, are the same as those which the so-called 
Territorial Waters Boundary Commissions, successively appointed 
on June 29th, 1911, and July 12th, 1912, had drawn in 1912 for 
Finnmark and in 1913 for Nordland and Troms. The Court 
further notes that the 1911 and 1912 Commissions advocated 
these lines and in so doing constantly referred, as the 1935 Decree 
itself did, to the traditional system of delimitation adopted by 
earlier acts and more particularly by the Decrees of 1812, 1869 
and 1889. 

In the absence of convincing evidence to the contrary, the Court 
cannot readily find that the lines adopted in these circumstances 
by the 1935 Decree are not in accordance with the traditional 



: 



91 

Norwegian system. However, a purely factual difference arose 
between the Parties concerning the three following base-points: 
No. 21 (Vesterfallet i Gaasan), No. 27 (Tokkebaaen) and No. 39 
(Nordboen) . This difference is now devoid of object. A telegram 
dated October 19th, 1951, from the Hydrographic Service of 
Norway to the Agent of the Norwegian Government, which was 
communicated to the Agent of the United Kingdom Government, 
has confirmed that these three points are rocks which are not 
continuously submerged. Since this assertion has not been further 
I disputed by the United Kingdom Government, it may be considered 
jthat the use of these rocks as base-points is in conformity with 
jthe traditional Norwegian system. 

Finally, it has been contended by the United Kingdom Govern- 
jment that certain, at least, of the base-lines adopted by the Decree 
fare, irrespective of whether or not they conform to the Norwegian 
i system, contrary to the principles stated above by the Court as 
I governing any delimitation of the territorial sea. The Court will 
(consider whether, from the point of view of these principles, cer- 
tain of the base-lines which have been criticized in some detail 
i really are without justification. 

The Norwegian Government admits that the base-lines must be 
| drawn in such a way as to respect the general direction of the 
| coast and that they must be drawn in a reasonable manner. The 
! United Kingdom Government contends that certain lines do not 
'follow the general direction of the coast, or do not follow it suf- 
! ficiently closely, or that they do not respect the natural connection 
[existing between certain sea areas and the land formations sepa- 
rating or surrounding them. For these reasons, it is alleged that 
Ithe line drawn is contrary to the principles which govern the 
I delimitation of the maritime domain. 

The Court observes that these complaints, which assumed a very 
| general scope in the written proceedings, have subsequently been 
reduced. 

The United Kingdom Government has directed its criticism more 
I particularly against two sectors, the delimitation of which they 
represented as extreme cases of deviation from the general di- 
rection of the coast: the sector of Svaerholthavet (between base- 
I points 11 and 12) and that of Lopphavet (between base-points 
1 20 and 21) . The Court will deal with the delimitation of these two 
sectors from this point of view. 

The base-line between points 11 and 12, which is 38.6 sea miles 
in length, delimits the waters of the Svaerholt lying between Cape 
Nordkyn and the North Cape. The United Kingdom Government 
denies that the basin so delimited has the character of a bay. Its 



92 

argument is founded on a geographical consideration. In its 
opinion, the calculation of the basin's penetration inland must 
stop at the tip of the Svaerholt peninsula (Svaerholtklubben) . The 
penetration inland thus obtained being only 11.5 sea miles, as 
against 38.6 miles of breadth at the entrance, it is alleged that 
the basin in question does not have the character of a bay. The 
Court is unable to share this view. It considers that the basin in 
question must be contemplated in the light of all the geographical 
factors involved. The fact that a peninsula juts out and forms 
two wide fjords, the Laksefjord and the Porsangerfjord, cannot 
deprive the basin of the character of a bay. It is the distances 
between the disputed base-line and the most inland point of these 
fjords, 50 and 75 sea miles respectively, which must be taken into 
account in appreciating the proportion between the penetration 
inland and the width at the mouth. The Court concludes that 
Svaerholthavet has the character of a bay. 

The delimitation of the Lopphavet basin has also been criticized 
by the United Kingdom. As has been pointed out above, its 
criticism of the selection of base point No. 21 may be regarded 
as abandoned. The Lopphavet basin constitutes an ill-defined 
geographic whole. It cannot be regarded as having the character 
of a bay. It is made up of an extensive area of water dotted with 
large islands which are separated by inlets that terminate in the 
various fjords. The base-line has been challenged on the ground 
that it does not respect the general direction of the coast. It should 
be observed that, however justified the rule in question may be, it 
is devoid of any mathematical precision. In order properly to 
apply the rule, regard must be had for the relation between the 
deviation complained of and what, according to the terms of the 
rule, must be regarded as the general direction of the coast. There- 
fore, one cannot confine oneself to examining one sector of the 
coast alone, except in a case of manifest abuse; nor can one rely 
on the impression that may be gathered from a large scale chart 
of this sector alone. In the case in point, the divergence between 
the base-line and the land formations is not such that it is a dis- 
tortion of the general direction of the Norwegian coast. 

Even if it were considered that in the sector under review the 
deviation was too pronounced, it must be pointed out that the Nor- 
wegian Government has relied upon an historic title clearly refer- 
able to the waters of Lopphavet, namely, the exclusive privilege 
to fish and hunt whales granted at the end of the 17th century to 
Lt.-Commander Erich Lorch under a number of licenses which 
show, inter alia, that the water situated in the vicinity of the 
sunken rock of Gjesbaaen or Gjesboene and the fishing grounds 



93 

pertaining thereto were regarded as falling exclusively within 
Norwegian sovereignty. But it may be observed that the fishing 
grounds here referred to are made up of two banks, one of which, 
the Indre Gjesboene, is situated between the base-line and the 
limit reserved for fishing, whereas the other, the Ytre Gjesboene, 
is situated further to seaward and beyond the fishing limit laid 
down in the 1935 Decree. 

These ancient concessions tend to confirm the Norwegian Gov- 
ernment's contention that the fisheries zone reserved before 1812 
was in fact much more extensive than the one delimited in 1935. 
It is suggested that it included all fishing banks from which land 
was visible, the range of vision being, as is recognized by the 
United Kingdom Government, the principle of delimitation in 
force at that time. The Court considers that, although it is not 
always clear to what specific areas they apply, the historical data 
produced in support of this contention by the Norwegian Govern- 
ment lend some weight to the idea of the survival of traditional 
rights reserved to the inhabitants of the Kingdom over fishing 
grounds included in the 1935 delimitation, particularly in the case 
of Lopphavet. Such rights, founded on the vital needs of the 
population and attested by very ancient and peaceful usage, may 
legitimately be taken into account in drawing a line which, more- 
over, appears to the Court to have been kept within the bounds 
of what is moderate and reasonable. 

As to the Vestfjord, after the oral argument, its delimitation 
no longer presents the importance it had in the early stages of the 
proceedings. Since the Court has found that the waters of the 
Indreleia are internal waters, the waters of the Vestfjord, as 
indeed the waters of all other Norwegian fjords, can only be 
regarded as internal waters. In these circumstances, whatever 
difference may still exist between the views of the United Kingdom 
Government and those of the Norwegian Government on this 
point, is negligible. It is reduced to the question whether the base- 
line should be drawn between points 45 and 46 as fixed by the 1935 
Decree, or whether the line should terminate at the Kalsholmen 
lighthouse on Tenholmerne. The Court considers that this ques- 
tion is purely local in character and of secondary importance, and 
that its settlement should be left to the coastal State. 

For these reasons, 

THE COURT, 

rejecting all submissions to the contrary, 

Finds 

by ten votes to two, 



94 

that the method employed for the delimitation of the fisheries 
zone by the Royal Norwegian Decree of July 12th 1935, is not 
contrary to international law; and 

by eight votes to four, 

that the base-lines fixed by the said Decree in application of 
this method are not contrary to international law. 

Done in French and English, the French text being authorita- 
tive, at the Peace Palace, The Hague, this eighteenth day of 
December, one thousand nine hundred and fifty-one, in three 
copies, one of which will be placed in the archives of the Court 
and the others transmitted to the Government of the United 
Kingdom of Great Britain and Northern Ireland and to the 
Government of the Kingdom of Norway, respectively. 

(Signed ) B asdevant, 

President. 

(Signed) E. Hambro, 

Registrar. 

Judge HACKWORTH declares that he concurs in the operative 
part of the Judgment but desires to emphasize that he does so for 
the reason that he considers that the Norwegian Government has 
proved the existence of an historic title to the disputed areas of 
water. 

Judges ALVAREZ and HSU MO, availing themselves of the 
right conferred on them by Article 57 of the Statute, append to the 
Judgment of the Court statements of their separate opinions. 

Judges Sir Arnold McNAIR and READ, availing themselves of 
the right conferred on them by Article 57 of the Statute, append 
to the Judgment statements of their dissenting opinions. 

(Initialled) J.B. 
(Initialled) E.H. 

4. Individual Opinion of Judge Alvarez 

[Translation.'] 



The United Kingdom has filed with the International Court of 
Justice an Application in which it challenges the validity of the 
Norwegian Decree of July 12th, 1935, which delimited the Nor- 
wegian fishery zones off a part of the Norwegian coast. It considers 
that the delimitation so effected is contrary to the precepts of inter- 
national law and asks the Court to state the principles of inter- 



95 

national law applicable for defining the base-lines by reference to 
which the Norwegian Government is entitled to delimit its fisheries 
zones. 

In the course of the oral proceedings, the United Kingdom 
Government submitted certain new conclusions, particularly on 
questions of law, and asked the Court to adjudicate upon these also. 

In her Counter-Memorial and Rejoinder, and in her arguments 
in Court, Norway contended that the delimitation of these fisheries 
zones established in the 1935 Decree was not in conflict with the 
precepts of international law and that it corresponded, in any 
event, to historic rights long possessed by her and which she 
indicated. 

The present litigation is of great importance, not only to the 
Parties to the case, but also to all other States. 

At the beginning of his address to the Court, the Attorney- 
General said: "It is common ground that this case is not only a 
very important one to the United Kingdom and to Norway, but 
that the decision of the Court on it will be of the very greatest 
importance to the world generally as a precedent, since the Court's 
decision in this case must contain important pronouncements con- 
cerning the rules of international law relating to coastal waters. 
The fact that so many governments have asked for copies of our 
Pleadings in this case is evidence that this is the general view." 

II 

In considering the present case, I propose to follow a method 
different from that which is customarily adopted, particularly with 
regard to the law. It consists of bringing to light and retaining the 
principal facts, then of considering the points of law dominating 
the whole case and, finally, those which relate to each important 
question. 

The application of this method may, at first sight, appear to be 
somewhat academic ; but it is essentially practical, since it has as 
its object the furnishing of direct answers to be given on the 
questions submitted to the Court. 

Moreover, this method is called for by reason of the double task 
which the Court now has : the resolution of cases submitted to it 
and the development of the law of nations. 

It is commonly stated that the present Court is a continuation of 
the former Court and that consequently it must follow the methods 
and the jurisprudence of that Court. This is only partly true, for 
in the interval which elapsed between the operations of the Courts, 
a World War occurred which involved rapid and profound changes 
in international life and greatly affected the law of nations. 



96 

These changes have underlined the importance of the Court's 
second function. For it now happens with greater frequency than 
formerly that, on a given topic, no applicable precepts are to be 
found, or that those which do exist present lacunae or appear to be 
obsolete, that is to say, they no longer correspond to the new condi- 
tions of the life of peoples. In all such cases, the Court must de- 
velop the law of nations, that is to say, it must remedy its short- 
comings, adapt existing principles to these new conditions and, 
even if no principles exist, create principles in conformity with 
such conditions. The Court has already very successfully under- 
taken the creation of law in a case which will remain famous in 
the annals of international law (Advisory Opinion of April 11th, 
1949, on "Reparation for injuries suffered in the service of the 
United Nations"). The Court, in this case, can effectively dis- 
charge the same task. 

The adaptation of the law of nations to the new conditions of 
international life, which is to-day necessary, is something quite 
different from the "Restatement" advocated by Anglo-Saxon 
jurists as a means of ending the crisis in international law, which 
consists merely of stating the law as it has been established and 
applied up to the present, without being too much concerned with 
any changes that it may recently have undergone or which it may 
undergo in the future. 

Ill 

I shall not dwell on a detailed examination of the facts alleged 
by the Parties nor upon the evidence submitted by the Parties in 
support of their contentions, because the Judgment of the Court 
deals with them at length. In the following pages I shall concen- 
trate only on the questions of law raised by the present case. 

For centuries, because of the vastness of the sea and the limited 
relations between States, the use of the sea was subject to no 
rules; every State could use it as it pleased. 

From the end of the 18th century, publicists proclaimed, and the 
law of nations recognized as necessary for States, the exercise of 
sovereign powers by States over an area of the sea bordering their 
shores. The extent of this sea area, which was known as the terri- 
torial sea, was first fixed at the range of the contemporary cannon, 
and later at 3 sea miles. The question indeed was one for the 
domestic law of each country. Several of the countries of Latin 
America incorporated provisions relating to this question in their 
civil codes. 

As the result of the growing importance of the question of the 
territorial sea, a World Conference was convened at The Hague 



97 

in 1930 for the purpose of providing rules governing certain of 
its aspects and to deal with two other matters. This Conference, 
in which such great hopes had been reposed, did not establish any 
precept relating to the territorial sea. It made it clear that no well- 
defined rules existed on this subject, that there were merely a num- 
ber of conventions between certain States, certain trends and cer- 
tain usages and practices. 

It was contended at the hearings that a great number of States 
at this Conference had accepted the extent of the territorial sea as 
being fixed at three sea miles, and had also accepted as established 
the means of reckoning this breadth ; and this assertion was chal- 
lenged. It is unnecessary to dwell long on this point for, in fact, 
the Conference, as has been said, did not adopt any provision on the 
question. Moreover, the conditions of international life have con- 
siderably changed since that time ; it is therefore probable that the 
States which in 1930 accepted a breadth of three sea miles would 
not accept it to-day. 

IV 

What should be the position adopted by the Court, in these cir- 
cumstances, to resolve the present dispute? 

The Parties, in their Pleadings and in their Oral Arguments, 
have advanced a number of theories, as well as systems, practices 
and, indeed, rules which they regarded as constituting interna- 
tional law. The Court thought that it was necessary to take them 
into consideration. These arguments, in my opinion, marked the 
beginning of a serious distortion of the case. 

In accordance with uniformly accepted doctrine, international 
judicial tribunals must, in the absence of principles provided by 
conventions, or of customary principles on a given question, apply 
the general principles of law. This doctrine is expressly confirmed 
in Article 38 of the Statute of the Court. 

It should be observed in this connection that international 
arbitration is now entering a new phase. It is not enough to stress 
the general principles of law recognized by civilized nations; re- 
gard must also be had, as I have said, to the modifications which 
these principles may have undergone as a result of the great 
changes which have occurred in international life, and the prin- 
ciples must be adapted to the new conditions of international life ; 
indeed, if no principles exist covering a given question, principles 
must be created to conform to those conditions. 

The taking into consideration of these general principles, and 
their adaptation, are all the more necessary in the present case, 
since the United Kingdom has asked the Court to declare that 



98 

the Norwegian Decree of 1935 is contrary to the principles of 
international law now in force. 

V 

What are the principles of international law which the Court 
must have recourse to and, if necessary, adapt ? And what are the 
principles which it must in reality create? 

It should, in the first place, be observed that frequent refer- 
ence is made to the principles of the law of nations, in conven- 
tions and in certain of the Judgments of the Permanent Court of 
International Justice, but it is not said what those principles are 
nor where they may be found. 

Some clarification is therefore necessary on this point. 

In the first place, many of the principles, particularly the great 
principles, have their origin in the legal conscience of peoples (the 
psychological factor). This conscience results from social and 
international life ; the requirements of this social and international 
life naturally give rise to certain norms considered necessary to 
govern the conduct of States inter se. 

As a result of the present dynamic character of the life of peo- 
ples, the principles of the law of nations are continually being 
created, and they undergo more or less rapid modification as a 
result of the great changes occurring in that life. 

For the principles of law resulting from the juridical con- 
science of peoples to have any value, they must have a tangible 
manifestation, that is to say, they must be expressed by authorized 
bodies. 

Up to the present, this juridical conscience of peoples has been 
reflected in conventions, customs and the opinions of qualified 
jurists. 

But profound changes have occurred in this connection. Con- 
ventions continue to be a very important form for the expression 
of the juridical conscience of peoples, but they generally lay down 
only new principles, as was the case with the Convention on 
genocide. On the other hand, customs tend to disappear as the 
result of the rapid changes of modern international life; and a 
new case strongly stated may be sufficient to render obsolete an 
ancient custom. Customary law, to which such frequent reference 
is made in the course of the arguments, should therefore be ac- 
cepted only with prudence. 

The further means by which the juridical conscience of peoples 
may be expressed at the present time are the resolutions of diplo- 
matic assemblies, particularly those of the United Nations and 
especially the decisions of the International Court of Justice. Ref- 



99 

erence must also be made to the recent legislation of certain coun- 
tries, the resolutions of the great associations devoted to the study 
of the law of nations, the works of the Codification Commission 
set up by the United Nations, and finally, the opinions of qualified 
jurists. 

These are the new elements on which the new international 
law, still in the process of formation, will be founded. This law 
will, consequently, have a character entirely different from that of 
traditional or classical international law, which has prevailed to 
the present time. 

VI 

Let us now consider the elements by means of which the general 
principles brought to light are to be adapted to the existing con- 
ditions of international life and by means of which new prin- 
ciples are, if necessary, to be created. 

The starting point is the fact that, for the traditional individual- 
istic regime on which social life has hitherto been founded, there 
is being substituted more and more a new regime, a regime of 
interdependence, and that, consequently, the law of social inter- 
dependence is taking the place of the old individualistic law. 

The characteristics of this law, so far as international law is 
concerned, may be stated as follows : 

(a) This law governs not merely a community of States, but 
an organized international society. 

(b) It is not exclusively juridical; it has also aspects which 
are political, economic, social, psychological, etc. It follows that 
the traditional distinction between legal and political questions, 
and between the domain of law and the domain of politics is con- 
siderably modified at the present time. 

(c) It is concerned not only with the delimitation of the 
rights of States but also with harmonizing them. 

(d) It particularly takes into account the general interest. 

(e) It also takes into account all possible aspects of every 
case. 

(f) It lays down, besides rights, obligations towards inter- 
national society; and sometimes States are entitled to exercise 
certain rights only if they have complied with the correlative 
duties. (Title V of the "Declaration of the Great Principles of 
Modern International Law" approved by three great associations 
devoted to the study of the law of nations.) 

(g) It condemns abus de droit. 

(h) It adapts itself to the needs of international life and 
develops side by side with it. 



ioo 

What are the principles which, in accordance with the fore- 
going, the Court must bring to light, adapt if necessary, or even 
create, with regard to the maritime domain and, in particular, the 
territorial sea? 

They may be stated as follows : 

1. Having regard to the great variety of the geographical 
and economic conditions of States, it is not possible to lay down 
uniform rules, applicable to all, governing the extent of the terri- 
torial sea and the way in which it is to be reckoned. 

2. Each State may therefore determine the extent of its ter- 
ritorial sea and the way in which it is to be reckoned, provided it 
does so in a reasonable manner, and that it is capable of exercising 
supervision over the zone in question and of carrying out the 
duties imposed by international law, that it does not infringe 
rights acquired by other States, that it does no harm to general 
interests and does not constitute an abus de droit. 

In fixing the breadth of its territorial sea, the State must indi- 
cate the reasons, geographic, economic, etc., which provide the 
justification therefor. 

In the light of this principle, it is no longer necessary to debate 
questions of base-lines, straight lines, closing lines of ten sea miles 
for bays, etc., as has been done in this case. 

Similarly, if a State adopts too great a breadth for its terri- 
torial sea, having regard to its land territory and to the needs of 
its population, or if the base-lines which it indicates appear to be 
arbitrarily selected, that will constitute an abus de droit. 

3. States have certain rights over their territorial sea, particu- 
larly rights to the fisheries; but they also have certain duties, 
particularly those of exercising supervision off their coasts, of 
facilitating navigation by the construction of lighthouses, by the 
dredging of certain areas of sea, etc. 

4. States may alter the extent of the territorial sea which they 
have fixed, provided that they furnish adequate grounds to justify 
the change. 

5. States may fix a greater or lesser area beyond their terri- 
torial sea over which they may reserve for themselves certain 
rights: customs, police rights, etc. 

6. The rights indicated above are of great weight if established 
by a group of States, and especially by all the States of a continent. 

The countries of Latin America have, individually or collectively, 
reserved wide areas of their coastal waters for specific purposes : 
the maintenance of neutrality, customs' services, etc., and lastly, 
for the exploitation of the wealth of the continental shelf. 



101 

7. Any State directly concerned may raise an objection to an- 
other State's decision as to the extent of its territorial sea or of 
the area beyond it, if it alleges that the conditions set out above 
for the determination of these areas have been violated. Disputes 
arising out of such objections must be resolved in accordance with 
the provisions of the Charter of the United Nations. 

8. Similarly, for the great bays and straits, there can be no 
uniform rules. The international status of every great bay and 
strait must be determined by the coastal States directly concerned, 
having regard to the general interest. The position here must be 
the same as in the case of the great international rivers: each 
case must be subject to its own special rules. 

At the Conference held in Barcelona in 1921 on navigable water- 
ways, I maintained that it was impossible to lay down general and 
uniform rules for all international rivers, in view of the great 
variety of conditions of all sorts obtaining among them; and this 
point of view was accepted. 

In short, in the case of maritime and river routes, it is not 
possible to contemplate the laying down of uniform rules ; the rules 
must accord with the realities of international life. In place of 
uniformity of rules it is necessary to have variety ; but the general 
interest must always be taken into account. 

9. A principle which must receive special consideration is that 
relating to prescription. This principle, under the name of his- 
toric rights, was discussed at length in the course of the hearings. 

The concept of prescription in international law is quite differ- 
ent from that which it has in domestic law. As a result of the 
important part played by force in the formation of States, there 
is no prescription with regard to their territorial status. The polit- 
ical map of Europe underwent numerous changes in the course of 
the 19th and 20th centuries ; it is to-day very different from what 
it was before the Great War, without any application of the prin- 
ciple of prescription. 

Nevertheless, in some instances, prescription plays a part in 
international law and it has certain important features. It is 
recognized, in particular, in the case of the acquisition and the 
exercise of certain rights. 

In support of the effect of prescription in such cases, two very 
important learned works should be mentioned, which adopt the 
collective opinion of jurists. 

The first of these is the "Declaration of the Great Principles of 
Modern International Law" which provides, in Article 20: "No 



102 

State is entitled to oppose, in its own interests, the making of 
rules on a question of general interest." 

"When, however, it has exercised special rights for a consider- 
able time, account must be taken of this in the making of rules." 

The other learned work is the "Draft Rules for the Territorial 
Sea in Peacetime" adopted by the Institute of International Law at 
the 1928 Session in Stockholm. Article 2 of this draft provides : 

"The breadth of the territorial sea is 3 sea miles. (It 
was then thought that this was sufficient.) 

International usage may justify the recognition of a 
breadth greater or less than 3 miles." 

For prescription to have effect, it is necessary that the rights 
claimed to be based thereon should be well established, that they 
should have been uninterruptedly enjoyed and that they should 
comply with the conditions set out in 2 above. 

International law does not lay down any specific duration of 
time necessary for prescription to have effect. A comparatively 
recent usage relating to the territorial sea may be of greater effect 
than an ancient usage insufficiently proved. 

10. It is also necessary to pay special attention to another 
principle which has been much spoken of: the right of States to 
do everything which is not expressly forbidden by international 
law. This principle, formerly correct, in the days of absolute 
sovereignty, is no longer so at the present day : the sovereignty of 
States is henceforth limited not only by the rights of other States 
but also by other factors previously indicated, which make up 
what is called the new international law : the Charter of the United 
Nations, resolutions passed by the Assembly of the United Na- 
tions, the duties of States, the general interests of international 
society and lastly the prohibition of abus de droit. 

11. Any State alleging a principle of international law must 
prove its existence; and one claiming that a principle of inter- 
national law has been abrogated or has become ineffective and 
requires to be renewed, must likewise provide proof of this claim. 

12. Agreement between the Parties as to the existence of a 
principle of law, or as to its application, for instance, as to the way 
in which base-lines determining the extent of the territorial sea 
are to be selected, etc., cannot have any influence upon the de- 
cision of the Court on the question. 

13. International law takes precedence over municipal law. 
Acts committed by a State which violate international law involve 
the responsibility of that State. 

14. A State is not obliged to protest against a violation of 






103 

international law, unless it is aware or ought to be aware of this 
violation ; but only the State directly concerned is entitled to refer 
the matter to the appropriate international body. (Article 39 of 
the "Declaration of the Great Principles of Modern International 
Law".) 

VII 

In accordance with the considerations set out above, I come to 
the following conclusions upon the questions submitted to the 
Court : 

(1) Norway — like all other States — is entitled, in accordance 
with the general principles of the law of nations now in existence, 
to determine not only the breadth of her territorial sea, but also 
the manner in which it is to be reckoned. 

(2) The Norwegian Decree of 1935, which delimited the Nor- 
wegian territorial sea, is not contrary to any express provisions of 
international law. Nor is it contrary to the general principles of 
international law, because the delimitation is reasonable, it does 
not infringe rights acquired by other States, it does no harm 
to general interests and does not constitute an abus de droit. 

In enacting the Decree of 1935, Norway had in view simply 
the needs of the population of the areas in question. 

(3) In view of the foregoing, it is unnecessary to consider 
whether or not Norway acquired by prescription a right to lay 
down a breadth of more than three sea miles for her territorial 
sea and the way in which its base-lines should be selected. 

(4) If Norway is entitled to fix the extent of her territorial 
sea, as has been said, it is clear that she can prohibit other States 
from fishing within the limits of that sea without their being 
entitled to complain of a violation of their rights. 

(5) The answer to the contentions of the Parties with regard to 
the existence of certain precepts of the law of nations which they 
consider to be in force at the present time has been given in the 
preceding pages. 

(Signed) A. Alvarez. 

5. Separate Opinion of Judge Hsu Mo 

I agree with the finding of the Court that the method of straight 
lines used in the Norwegian Royal Decree of July 12th, 1935, for 
the delimitation of the fisheries zone, is not contrary to inter- 
national law. But I regret that I am unable to share the view of 
the Court that all the straight base-lines fixed by that Decree 
are in conformity with the principles of international law. 

It is necessary to emphasize the fact that Norway's method 



104 

of delimiting the belt of her northern territorial sea by draw- 
ing straight lines between point and point, island and island, 
constitutes a deviation from what I believe to be a general rule 
of international law, namely, that apart from cases of bays and 
islands, the belt of territorial sea should be measured, in prin- 
ciple, from the line of the coast at low tide. International law per- 
mits, in certain circumstances, deviations from this general rule. 
Where the deviations are justifiable, they must be recognized by 
other States. Norway is justified in using the method of straight 
lines because of her special geographical conditions and her con- 
sistent past practice which is acquiesced in by the international 
communty as a whole. But for such physical and historical facts, 
the method employed by Norway in her Decree of 1935 would have 
to be considered to be contrary to international law. In examining, 
therefore, the question of the validity or non-validity of the base- 
lines actually drawn by Norway, it must be borne in mind that it 
is not so much the direct application of the general rule as the 
degree of deviation from the general rule that is to be considered. 
The question in each case is: how far the line deviates from the 
configuration of the coast and whether such deviation, under the 
system which the Court has correctly found Norway to have 
established, should be recognized as being necessary and rea- 
sonable. 

The examination of each base-line cannot thus be undertaken in 
total disregard of the coast line. In whatever way the belt of 
territorial sea may be determined, it always remains true that 
the territorial sea owes its existence to land and cannot be com- 
pletely detached from it. Norway herself recognizes that the base- 
lines must be drawn in a reasonable manner and must conform to 
the general direction of the coast. 

The expression "to conform to the general direction of the 
coast", being one of Norway's own adoption and constituting one 
of the elements of a system established by herself, should not be 
given a too liberal interpretation, so liberal that the coast line is 
almost completely ignored. It cannot be interpreted to mean that 
Norway is at liberty to draw straight lines in any way she pleases 
provided they do not amount to a deliberate distortion of the 
general outline of the coast when viewed as a whole. It must be 
interpreted in the light of the local conditions in each sector with 
the aid of a relatively large scale chart. If the words "to conform 
to the general direction of the coast" have any meaning in law at 
all, they must mean that the base-lines, straight as they are, 
should follow the configuration of the coast as far as possible and 
should not unnecessarily and unreasonably traverse great ex- 



los 

panses of water, taking no account of land or islands situated 
within them. 

Having examined the different sectors of the territorial sea 
as delimited by the Decree of 1935, I find two obvious cases in 
which the base-line cannot be considered to have been justifiably 
drawn. I refer to the base-line between points 11 and 12, which 
traverses Svaerholthavet, and the base-line between points 20 and 
21, which runs across Lopphavet. 

In the former case, the base-line, being 39 miles long, encloses 
a large area of the sea as Norwegian internal waters. The ques- 
tion to be determined here is whether the line is to be considered 
as the closing line of a bay or whether it is simply a line joining 
one base-point to another. If it is the former, it will be necessary 
to determine whether the area in question constitutes a bay in 
international law. In my opinion, the area is a combination of bays, 
large and small, eight in all, but not a bay in itself. It is not a bay 
in itself simply because it does not have the shape of a bay. To 
treat a number of adjacent bays as an entity, thereby completely 
ignoring their respective closing lines, would result in the creation 
of an artificial and fictitious bay, which does not fulfil the require- 
ments of a bay, either in the physical or in the legal sense. There 
is no rule of international law which permits the creation of such 
kind of bay. 

It has been argued by the Agent of the Norwegian Government 
that the fact that the Svaerholt peninsula protrudes into the 
waters in question to form the two fjords of Laksefjord and 
Porsangerfjord cannot deprive these waters of the character of a 
bay. But geographically and legally, it is precisely the existence of 
this peninsula that makes the two fjords separate and distinct 
bays, and it is this fact, coupled with the protrusion of smaller 
peninsulas on either side of the two fjords, that gives to this part 
of the coast (the section between points 11 and 12), not the char- 
acter of a bay, but merely the character of a curvature, a large 
concavity formed by the closing lines of several independent 
bays. Nature having created a number of bays, neighbouring 
but distinct from one another, the littoral State cannot, by the 
exercise of its sovereignty, turn them into one bay by drawing a 
long line between two most extreme points. 

If the base-line over Svaerholthavet is not the closing line of a 
bay, it must be just one of the straight lines joining one base- 
point to another. In that case, I fail to see how that line can be 
considered to conform to the general direction of the coast. In order 
to follow the general configuration of the coast, it should take into 
account at least some of the points which serve as the starting or 



106 

terminal points of the closing lines of the bays now enclosed by 
the long line in question. To leave out all the points on land which 
interpose between the two extreme points Nos. 11 and 12 and to 
enclose the whole concavity by drawing one excessively long line 
is tantamount to using the straight line method to extend seaward 
the four-mile breadth of the territorial sea. The application of the 
method in this manner cannot, in my view, be considered as 
reasonable. 

In the case of Lopphavet, the line connecting points 20 and 21, 
being 44 miles in length, affects an area of water of several 
hundred square miles. Norway does not claim this expanse of 
water to be a bay, and, indeed, by no stretch of the imagination 
could it be considered as a bay. Since Lopphavet is not a bay, there 
does not exist any legal reason for the base-line to skip over two 
important islands, Loppa and Fugloy, each of which forms a unit 
of the "skjaergaard". In ignoring these islands, the base-line 
makes an obviously excessive deviation from the general direction 
of the coast. For this reason, it cannot be regarded as being 
justifiable. 

The Agent of the Norwegian Government remarked during 
the oral proceedings that the basin of Lopphavet led to the In- 
dreleia which should be considered as Norwegian internal waters. 
I do not think that the Indreleia has anything to do with the region 
in question. For the Indreleia, according to the charts furnished by 
the Norwegian Government, goes through the Kaagsund between 
the islands of Arnoy and Kaagen and proceeds northward and 
northeastward between the islands of Loppa and Loppakalven on 
the one hand and the mainland on the other, finally bending into 
the Soroysund. It does not at all cut through Lopphavet outside 
the islands of Arnoy, Loppa and Soroy. Consequently, it does not 
overlap any portion of the immense area in this sector enclosed 
by the long base-line as Norwegian internal waters. 

I have so far examined the question of the validity or otherwise 
of the two base-lines, the one affecting Svaerholthavet, the other 
Lopphavet, exclusively from the aspect of their conformity or non- 
conformity with the general direction of the coast. It remains to 
consider whether Norway may base her claim in respect of the 
two regions on historical grounds. In my opinion, notwithstanding 
all the documents she has produced, she has not succeeded in 
establishing any historic title to the waters in question. 

In support of her historic title, Norway has relied on habitual 
fishing by the local people and prohibition of fishing by foreigners. 
As far as the fishing activities of the coastal inhabitants are con- 
cerned, I need only point out that individuals, by undertaking 



107 

enterprises on their own initiative, for their own benefit and with- 
out any delegation of authority by their Government, cannot con- 
fer sovereignty on the State, and this despite the passage of time 
and the absence of molestation by the people of other countries. 
As for prohibition by the Norwegian Government of fishing by 
foreigners, it is undoubtedly a kind of State action which militates 
in favour of Norway's claim of prescription. But the Rescripts on 
which she has relied contain one fatal defect : the lack of precision. 
For they fail to show any precise and well-defined areas of water, 
in which prohibition was intended to apply and was actually en- 
forced. And precision is vital to any prescriptive claim to areas of 
water which might otherwise be high seas. 

With regard to the licenses for fishing granted on three 
occasions by the King of Denmark and Norway to Erich Lorch, 
Lieutenant-Commander in the Dano-Norwegian Navy towards 
the close of the 17th century, I do not think that this is sufficient 
to confer historic title on Norway to Lopphavet. In the first place, 
the granting by the Danish-Norwegian Sovereign to one of his 
own subjects of what was at the time believed to be a special 
privilege can hardly be considered as conclusive evidence of the 
acquisition of historic title to Lopphavet vis-a-vis all foreign 
States. In the second place, the concessions were limited to waters 
near certain rocks and did not cover the whole area of Lopphavet. 
Lastly, there is no evidence to show that the concessions were 
exploited to the exclusion of participation by all foreigners for a 
period sufficiently long to enable the Norwegian Government to 
derive prescriptive rights to Lopphavet. 

My conclusion is therefore that neither by the test of conformity 
with the general direction of the coast, nor on historical grounds, 
can the two base-lines drawn across Svaerholthavet and Lop- 
phavet, respectively, be considered as being justifiable under the 
principles of international law. 

(Signed) Hsu Mo. 

6. Dissenting Opinion of Sir Arnold McNair 

In this case the Court has to decide whether certain areas of 
water off the coast of Norway are high seas or Norwegian waters, 
either territorial or internal. If they are high seas, then foreign 
fisherman are authorized to fish there. If they are Norwegian 
waters, then foreign fishermen have no right to fish there except 
with the permission of Norway. I have every sympathy with the 
small inshore fisherman who feels that his livelihood is being 
threatened by more powerfully equipped competitors, especially 
when those competitors are foreigners; but the issues raised in 



108 

this case concern the line dividing Norwegian waters from the 

high seas, and those are issues which can only be decided on a basis 

of law. 

* * * 

The preamble and the executive parts of the Decree of 1935 are 
as follows: 

"On the basis of well-established national titles of 
right ; 

by reason of the geographical conditions prevailing on 
the Norwegian coasts ; 

in safeguard of the vital interests of the inhabitants of 
the northernmost parts of the country ; 

and in accordance with the Royal Decrees of the 22nd 
February, 1812, and 16th October, 1869, the 5th January, 
1881, and the 9th September, 1889, 

are hereby established lines of delimitation towards the 
high sea of the Norwegian fisheries zone as regards that 
part of Norway which is situated northward of 66° 28.8' 
North latitude. 

These lines of delimitation shall run parallel with 
straight base-lines drawn between fixed points on the 
mainland, on islands or rocks, starting from the final 
point of the boundary line of the Realm in the eastern- 
most part of Varangerf jorden and going as far as Traena 
in the County of Nordland. 

The fixed points between which the base-lines shall be 
drawn are indicated in detail in a schedule annexed to 
this Decree." 

[Schedule] 

Mr. Arntzen, the Norwegian Agent and Counsel, told the Court 
(October 5th) that: 

"The Decree of 1935 is founded on the following 
principles: the Norwegian territorial zone is four sea- 
miles in breadth. It is measured from straight lines which 
conform to the general direction of the coast and are 
drawn between the outermost islands, islets and reefs in 
such a way as never to lose sight of the land." 

Although the Decree of 1935 does not use the expression "ter- 
ritorial sea" or "waters" or "zone", it cannot be denied that the 
present dispute relates to the Norwegian territorial sea. The 
Judgment of the Court is emphatic on this point. The same point 
emerges clearly from the United Kingdom's Application institut- 



109 

ing the proceedings and was insisted upon in the Norwegian writ- 
ten and oral argument on numerous occasions. Thus, on October 
9th, the Norwegian Counsel, Professor Bourquin, said: 

"What is the subject of the dispute? It relates to the 
base-lines — that is to say, to the lines from which the 
four miles of the Norwegian territorial sea are to be 
reckoned. ..." 

And again, in his oral reply, he said on October 25th: 

"What [Norway] claims — apart from her historic 
title — is that the limits imposed by international law 
with regard to the delimitation of her maritime territory 
have not been infringed by the 1935 Decree and that this 
Decree can therefore be set up as against the United 
Kingdom without any necessity for any special acquies- 
cence on the part of the United Kingdom." 

One thing this dispute clearly is not. It is not a question of the 
right of a maritime State to declare the existence of a contiguous 
zone beyond its territorial waters, in which zone it proposes to 
take measures for the conservation of stocks of fish. An illus- 
tration of this is to be found in President Truman's "Proclama- 
tion with respect to Coastal Fisheries in certain areas of the High 
Seas, dated September 28th, 1945" (American Journal of Inter- 
national Laiv, Vol. 40, 1946, Official Documents, p. 46) ; it will 
suffice to quote the following statement: 

"The character as high seas of the areas in which such 
convervation zones are established and the right to their 
free and unimpeded navigation are in no way thus 
affected." 

That is not this case, for here the question is whether certain 
disputed areas of sea water are parts of the high seas or parts of 
the territorial or internal waters of the coastal State. 

In the course of the proceedings in the case, the United 
Kingdom has made certain admissions or concessions which 
can be summarized as follows : 

(a) that for the purposes of this case Norway is entitled to a 
four-mile limit; 

(b) that the waters of the fjords and sunds (including the 
Varangerfjord and Vestfjord) which fall within the conception 
of a bay, are, subject to a minor point affecting the status of the 
Vestfjord which I do not propose to discuss, Norwegian internal 
waters; and 



110 

(c) that (as defined in the Conclusions of the United Kingdom) 
the waters lying between the island fringe and the mainland are 
Norwegian waters, either territorial or internal. 

The Parties are also in conflict upon another minor point, 
namely, the status of the waters in certain portions of Indreleia, 
about which I do not propose to say anything. 

* * * 

I shall now summarize the relevant part of the law of terri- 
torial waters as I understand it: 

(a) To every State whose land territory is at any place washed 
by the sea, international law attaches a corresponding portion of 
maritime territory consisting of what the law calls territorial 
waters (and in some cases national waters in addition). Inter- 
national law does not say to a State: "You are entitled to claim 
territorial waters if you want them." No maritime State can re- 
fuse them. International law imposes upon a maritime State cer- 
tain obligations and confers upon it certain rights arising out of 
the sovereignty which it exercises over its maritime territory. The 
possession of this territory is not optional, not dependent upon 
the will of the State, but compulsory. 

(b) While the actual delimitation of the frontiers of terri- 
torial waters lies within the competence of each State because 
each State knows its own coast best, yet the principles followed 
in carrying out this delimitation are within the domain of law 
and not within the discretion of each State. As the Supreme Court 
of the United States said in 1946 in the United States V. State of 
California, 332 U.S. 19, 35 : 

"The three-mile rule is but a recognition of the neces- 
sity that a government next to the sea must be able to 
protect itself from dangers incident to its location. It 
must have powers of dominion and regulation in the 
interest of its revenues, its health, and the security of its 
people from wars waged on or too near its coasts. And in 
so far as the nation asserts its rights under international 
law, whatever of value may be discovered in the seas 
next to its shore and within its protective belt, will most 
naturally be appropriated for its use. But whatever any 
nation does in the open sea, which detracts from its com- 
mon usefulness to nations, or which another nation may 
charge detracts from it, is a question for consideration 
among nations as such, and not their separate govern- 
mental units." (Cited and re-affirmed in 1950 in United 
States v. State of Texas, 339 U.S. 707, 718.) 



Ill 

(c) The method of delimiting territorial waters is an ob- 
jective one and, while the coastal State is free to make minor 
adjustments in its maritime frontier when required in the inter- 
ests of clarity and its practical object, it is not authorized by the 
law to manipulate its maritime frontier in order to give effect 
to its economic and other social interests. There is an over- 
whelming consensus of opinion amongst maritime States to the 
effect that the base-line of territorial waters, whatever their ex- 
tent may be, is a line which follows the coast-line along low-water 
mark and not a series of imaginary lines drawn by the coastal 
State for the purpose of giving effect, even within reasonable 
limits, to its economic and other social interests and to other 
subjective factors. 

In 1894 Bonfils (Droit international public, Sec. 491) described 
la mer juridictionnelle ou littorale, as : 

"la bande de l'ocean qui entoure et enceint les cotes du 
territoire continental ou insulaire et sur laquelle l'Etat 
peut, du rivage que baignent les eaux de cette mer, faire 
respecter sa puissance". 

(d) The calculation of the extent of territorial waters from the 
land is the normal and natural thing to do ; its calculation from a 
line drawn on the water is abnormal and requires justification, 
for instance, by showing that the line drawn on the water is drawn 
from the terminal line of internal waters in a closed bay or an 
historic bay or a river mouth, which will be dealt with later. One 
must not lose sight of the practical operation of the limit of ter- 
ritorial waters. It is true that they exist for the benefit of the 
coastal State and not for that of the foreign mariner approaching 
them. Nevertheless, if he is to respect them, it is important that 
their limit should be drawn in such a way that, once he knows how 
many miles the coastal State claims, he should — whether he is a 
fisherman or the commander of a belligerent vessel in time of war 
— be able to keep out of them by following ordinary maritime 
practice in taking cross-bearings from points on the coast, when- 
ever it is visible, or in some other way. This practical aspect of 
the matter is confirmed by the practice of Prize Courts in seeking 
to ascertain whether a prize has been captured within neutral ter- 
ritorial waters or on the high seas; see, for instance, The Anne 
(1818) Prize Cases in the United States Supreme Court, page 
1012; The Heina (1915), Fauchille, Jurisprudence frangaise en 
matiere de prises, I, page 119; II, page 409, a Norwegian ship 
captured by a French cruiser in 1914 at a point four miles and 
five-sixths from an island forming part of the Danish Antilles ; and 



112 

by decisions upon illegal fishing within territorial waters, e.g. 
Ship May v. The King, Canada Law Reports, Supreme Court, 1931, 
page 374, or upon other illegal entry into territorial waters, The 
Ship "Queen City" v. The King, ibid., page 387. 

(e) Reference should also be made to the statement in the 
Report on Territorial Waters approved by the League Codifica- 
tion Committee in 1927 for transmission to governments for their 
comments, particularly page 37 of League document C.196.M.70. 
1927.V., where, after referring to what it calls the seaward limit 
of the territorial sea, the Report continues : 

"Mention should also be made of the line which limits 
the rights of dominion of the riparian State on the land- 
ward side. This question is much simpler. The general 
practice of the States, all projects of codification and the 
prevailing doctrine agree in considering that this line 
should be low-water mark along the whole of the coast." 

(f ) In 1928 and 1929 replies were sent by a number of govern- 
ments to the questions put to them by the Committee of Five 
which made the final preparations for the Hague Codification 
Conference of 1930 (League of Nations, C.74.M.39.1929.V., pp. 35 
et seq.) . 

As I understand these replies — the language is not always ab- 
solutely plain — seventeen governments declared themselves in 
favour of the view that the base-line of territorial waters is a line 
which follows the coast-line along low-water mark and against 
the view that the base-line consists of a series of lines connecting 
the outermost points of the mainland and islands. The following 
Governments took the latter view : Norway, Sweden, Poland, So- 
viet Russia and, probably, Latvia. (In this respect my analysis 
corresponds closely to that of paragraph 298 of the Counter- 
Memorial.) 

It may be added that Poland had recovered sovereignty over her 
maritime territory only eleven years before, after an interval of 
more than a century, and that Latvia became a State only in 1918. 
All the States parties to the North Sea Fisheries Convention of 
1882, Belgium, Denmark, France, Germany, Great Britain and 
the Netherlands, as I understand their replies, accepted the rule 
of low-water mark following the line of the coast ; so also did the 
United States of America. Governments are not prone to under- 
state their claims. 

(g) It is also instructive to notice the Danish reply because 
Denmark was, with Norway, the joint author of the Royal Decree 
of 1812, on which the Norwegian Decree of 1935 purports to be 



113 

based, and Denmark told the League of Nations Committee that 
the Decree of 1812 was still in force in Denmark. The Danish 
reply states that: 

"Paragraph 2 of Article 3 of the regulations introduced 
by Royal Decree of January 19th, 1927, concerning the 
admission of war-vessels belonging to foreign Powers 
to Danish ports and territorial waters in time of peace, 
contains the following clause: 

'Danish internal waters comprise, in addition to 
the ports, entrances of ports, roadsteads, bays and 
firths, the waters situated between, and on the shore- 
ward side of, islands, islets and reefs, which are not 
permanently submerged.' 

(Quotation from Decree of 1927 ends.) 

"Along the coast the low-water mark is taken as a base 
in determining the breadth of the territorial waters. The 
distance between the coast and the islands is not taken 
into account, so long as it is less than double the width of 
the territorial zone." 

(h) But although this rule of the limit following the coast line 
along low-water mark applies both to straight coasts and to 
curved and indented coasts, an exception exists in the case of 
those indentations which possess such a configuration, both as to 
their depth and as to the width between their headlands, as to 
constitute landlocked waters, by whatever name they may be 
called. It is usual and convenient to call them "bays", but what 
really matters is not their label but their shape. 

A recent recognition of the legal conception of bays is to be 
found in the reply of the United States of America given in 1949 
or 1950 to the International Law Commission, published by the 
United Nations in Document A/CN.4/19, page 104, of 23rd March, 
1950: 

"The United States has from the outset taken the posi- 
tion that its territorial waters extend one marine league, 
or three geographical miles (nearly 31/2 English miles) 
from the shore, with the exception of waters or bays that 
are so landlocked as to be unquestionably within the juris- 
diction of the adjacent State." 

(Then follow a large number of references illustrating this state- 
ment.) 

There are two kinds of bay in which the maritime belt is 
measured from a closing line drawn across it between its head- 



114 

lands, that is to say, at the point where it ceases to have the con- 
figuration of a bay. The first category consists of bays whose head- 
lands are so close that they can really be described as landlocked. 
According to the strict letter and logic of the law, a closing line 
should connect headlands whenever the distance between them is 
no more than double the agreed or admitted width of territorial 
waters, whatever that may be in the particular case. In practice, 
a somewhat longer distance between headlands has often been 
recognized as justifying the closing of a bay. There are a number 
of treaties that have adopted ten miles, in particular the Anglo- 
French Convention of 1839, and the North Sea Fisheries Con- 
vention of 1882, which was signed and ratified by Germany, Bel- 
gium, Denmark, France, Great Britain and the Netherlands. It 
cannot yet be said that a closing line of ten miles forms part of a 
rule of customary law, though probably no reasonable objection 
could be taken to that figure. At any rate Norway is not bound by 
such a rule. But the fact that there is no agreement upon the 
figure does not mean that no rule at all exists as to the closing line 
of curvatures possessing the character of a bay, and that a State 
can do what it likes with its bays ; for the primary rule governing 
territorial waters is that they form a belt or bande de mer follow- 
ing the line of the coast throughout its extent, and if any State 
alleges that this belt ought not to come inside a particular bay and 
follow its configuration, then it is the duty of that State to show 
why that bay forms an exception to this general rule. 

The other category of bay whose headlands may be joined for 
the purpose of fencing off the waters on the landward side as in- 
ternal waters is the historic bay, and to constitute an historic bay 
it does not suffice merely to claim a bay as such, though such claims 
are not uncommon.. Evidence is required of a long and consistent 
assertion of dominion over the bay and of the right to exclude 
foreign vessels except on permission. The matter was considered 
by the British Privy Council in the case of Conception Bay in 
Newfoundland in Direct United States Cable Company v. Anglo- 
American Telegraph Company (1877) 2 Appeal Cases 394. The 
evidence relied upon in that case as justifying the claim of an 
historic bay is worth noting. There was a Convention of 1818 be- 
tween the United States of America and Great Britain which ex- 
cluded American fishermen from Conception Bay, followed by a 
British Act of Parliament of 1819, imposing penalties upon "any 
person" who refused to depart from the bay when required by 
the British Governor. The Privy Council said: 

"It is true that the Convention would only bind the two 



115 

nations who were parties to it, and consequently that, 
though a strong assertion of ownership on the part of 
Great Britain, acquiesced in by so powerful a State as 
the United States, the Convention, though weighty, is not 
decisive. But the Act already referred to ... . goes 
further" .... "No stronger assertion of exclusive do- 
minion over these bays could well be framed." [This 
Act] "is an unequivocal assertion of the British legisla- 
ture of exclusive dominion over this bay as part of the 
British territory. And as this assertion of dominion has 
not been questioned by any nation from 1819 down to 
1872, when a fresh Convention was made, this would be 
very strong in the tribunals of any nation to show that 
this bay is by prescription part of the exclusive territory 
of Great Britain. . . ." 

Claims to fence off and appropriate areas of the high seas by 
joining up headlands have been made from time to time, but 
usually in the case of particular pieces of water and not on the 
thoroughgoing scale of the Decree of 1935. There is a considerable 
body of legal authority condemning this practice. This theory — 
to the effect that the coastal State is at liberty to draw a line con- 
necting headlands on its coast and to claim the waters on the 
landward side of that line as its own waters — has sometimes been 
referred to as the "headland theory" or "la theorie" or "la doctrine 
des caps". 

There are two decisions by an umpire called Bates in arbitra- 
tions between the United States of America and the United King- 
dom in 1853 or 1854 (Moore's International Arbitrations, Vol. 4, 
pp. 4342-5) : the Washington, seized while fishing within a line 
connecting the headlands of the Bay of Fundy, which is 65 to 75 
miles wide and 130 to 140 miles long and "has several bays on its 
coasts", and the Argus, seized while fishing 28 miles from the 
nearest land and within a line connecting two headlands on the 
north-east side of the island of Cape Breton; I do not know the 
distance between them. In both cases, the seizures were condemned 
and compensation was awarded to the owners of the vessels. In the 
Washington the umpire said : 

"It was urged on behalf of the British Government that 
by coasts, bays, etc., is understood an imaginary line, 
drawn along the coast from headland to headland, and 
that the jurisdiction of Her Majesty extends three marine 
miles outside of this line ; thus closing all the bays on the 
coast or shore, and that great body of water called the 



116 

Bay of Fundy against Americans and others, making the 
latter a British bay. This doctrine of headlands is new, 
and has received a proper limit in the Convention between 
France and Great Britain of August 2nd, 1839, in which 
'it is agreed that the distance of three miles fixed as the 
limit for the exclusive right of fishery upon the coasts 
of the two countries shall, with respect to bays the 
mouths of which do not exceed ten miles in width, be 
measured from a straight line drawn from headland to 
headland/ " 

Then, in 1881, Mr. Evarts, American Secretary of State, sent 
a despatch to the American representative in Spain which con- 
tained the following passage (Moore's Digest of International 
Law, i, p. 719) : 

"Whether the line which bounds seaward the three-mile 
zone follows the indentations of the coast or extends from 
headland to headland is the question next to be dis- 
cussed. 

The headland theory, as it is called, has been uniformly 
rejected by our Government, as will be seen from the 

• •«•••••••• 

opinions of the Secretaries above referred to. The follow- 
ing additional authorities may be cited on this point : 

In the opinion of the umpire of the London Commis- 
sion of 1853 [I think he refers to the Washington or the 
Argus'] , it was held that : 'It can not be asserted as a gen- 
eral rule, that nations have an exclusive right of fishery 
over all adjacent waters to a distance of three marine 
miles beyond an imaginary line drawn from headland to 
headland/ " 

He concluded: 

"We may therefore regard it as settled that, so far as 
concerns the eastern coast of North America, the position 
of this Department has uniformly been that the sover- 
eignty of the shore does not, so far as territorial author- 
ity is concerned, extend beyond three miles from low- 
water mark, and that the seaward boundary of this zone 
of territorial waters follows the coast of the mainland, 
extending where there are islands so as to place round 
such islands the same belt. This necessarily excludes the 
position that the seaward boundary is to be drawn from 
headland to headland, and makes it follow closely, at a 



117 

distance of three miles, the boundary of the shore of the 
continent or of adjacent islands belonging to the con- 
tinental sovereign." 

And "la theorie des caps" is condemned by Fauchille. Droit 

international public, para. 493 (6), in the words: "Elle ne saurait 

juridiquement prevaloir: elle est une atteinte manifeste a la 

liberte des mers." 

* * * 

I shall now examine the Decree of 1935 and direct attention to 
the results produced by the "straight base-lines" which it lays 
down. It is difficult without the visual aid of large-scale charts 
to convey a correct picture of the base-lines and the outer lines 
of delimitation established by the Decree of 1935. The area affected 
begins at Traena on the north-west coast not far from the en- 
trance to Vestfjord and runs round North Cape down to the 
frontier with Russia near Grense-Jacobselv, the total length of 
the outer line being about 560 sea miles without counting fjords 
and other indentations. There are 48 fixed points — often arbitrar- 
ily selected — between which the base-lines are drawn. Twelve of 
these base-points are located on the mainland or islands, 36 of 
them on rocks or reefs. Some of the rocks are drying rocks and 
some permanently above water. The length of the base-lines and 
the corresponding outer lines varies greatly. At some places, 
where there are two or more rocks at a turning point, the length 
of the base-lines may be only a few cables. At other places the 
length is very great, for instance, 

between 5 and 6 25 miles 

7 " 8 19 " 

8 " 9 25 " 

11 " 12 39 " 

12 " 13 19 " 

18 " 19 26l/ 2 " 

19 " 20 19.6 " 

20 " 21 44 " 

21 " 22 18 " 

25 " 26 191/2 " 

27 " 28 18 " 

I have omitted the base-lines connecting base-points 1 and 2 
and base-points 45 and 46, which are respectively 30 and 40 miles, 
because they are the closing lines of Varangerf jord and Vestfjord, 
and these fjords, like the others, have been conceded by the United 
Kingdom to be Norwegian waters, subject to a minor controversy 



118 

as to the precise position of the closing line of the latter. I have 
also omitted mention of all base-lines less than 18 miles. 

The base-line connecting base-points 20 and 21 (44 miles) 
rests for a brief moment upon Vesterfall in Gasan (21), a drying 
rock eight miles from the nearest island, and then continues, with 
an almost imperceptible bend, in the same direction for a further 
18 miles to base point 22, a drying rock ; thus between base-points 
20 and 22 we get an almost completely straight line of 62 miles. 
Again, the base-line which connects base-points 18 and 20, both 
above-water rocks, runs absolutely straight for 46.1 miles. 

In order to illustrate the distance between many parts on the 
outer lines and the land, I shall take two sectors which I find 
particularly difficult to reconcile with the ordinary conception 
of the maritime belt — namely, that comprised by base-points 11 
and 12 (39 miles apart), an area sometimes called Svaerholthavet, 
and that comprised by base-points 20 and 21 (44 miles apart), 
an area sometimes called Lopphavet. In each case I propose to pro- 
ceed along the outer line and take, at intervals of 4 miles, measure- 
ments in miles from the outer line to the nearest mainland or on 
an island: 

Svaerholthavet: Measurements to mainland or islands from 
the outer line, at intervals of 4 miles proceeding from base-point 
11 to base-point 12 are as follows: 4 miles at base-point 11, then 
5%, 8%, 11, 13, 12 (or 11 from a lighthouse), 11 (or 9 from a 
lighthouse) , 8, 6, and nearly 5 ; 

Lopphavet: Measurements to mainland or islands from the 
outer line, at intervals of 4 miles proceeding from 20 to 21, are as 
follows : 4 miles at base-point 20, then 6, 8%, 12, 16, 16, 18, 17, 
14!/2> 121/2 (or 8 from base-point 21, a drying rock) , 12 (or 5 from 
base-point 21). 

Moreover, each of these two areas — Svaerholthavet and Lop- 
phavet — in no sense presents the configuration of a bay and com- 
prises a large number of named and unnamed fjords and sunds 
which have been admitted by the United Kingdom to be Nor- 
wegian internal waters within their proper closing lines. In one 
part of Lopphavet the outer line is distant more than 20 miles 
from the closing line of a fjord. In the opinion of the Court (see 
p. 141) Lopphavet "cannot be regarded as having the character 
of a bay" ; and I may refer to an additional circumstance which 
militates against the opinion that the whole of this large area is 
Norwegian waters: that is, that according to the (British Ad- 
miralty) Norway Pilot, Part III, page 607, the approach to the 
port of Hammerfest through Soroysundet, which runs out of 
Lopphavet towards Hammerfest, "is the shortest and, on the 



119 

whole, the best entrance to Hammerf est from westward, especially 
in bad weather"; see The Alleganean (Moore, International Ar- 
bitrations, iv, pp. 4332-4341, "that it can not become the pathway 
from one nation to another" — as one of the conditions for holding 
Chesapeake Bay to be a closed historic bay) . Another questionable 
area is that comprised by the lines connecting base-points 24 and 
26, totalling 36 miles. 

These three illustrations are among the extreme cases. A more 
normal base-line is that which connects base-points 5 (a point 
on the island of Reinoy) and 6 (Korsneset, a headland on the main- 
land) ; this base-line — 25 miles in length — runs in front of Pers- 
fjord, Syltefjord and Makkaufjord, all of which have been ad- 
mitted by the United Kingdom to be Norwegian internal waters, 
but the line pays no attention to their closing lines ; at no place, 
however, is the distance between the outer line and the land or 
closing line of a fjord more than about six miles. 

I draw particular attention to the fact that many, if not most, 
of the base-lines of the Decree of 1935 fence off many areas of 
water which contain fjords or bays, and pay little, if any, atten- 
tion to their closing lines ; in the case of the Washington, referred 
to above, the umpire, in rejecting the claim to treat the Bay of 
Fundy as a closed bay, twice drew attention to the fact that it 
comprised other bays within itself: "It has several bays on its 
coasts", and again he refers to "the imaginary line .... thus 
closing all the bays on the shore." 

The result of the lines drawn by the Decree is to produce a col- 
lection of areas of water, of different shapes and sizes and differ- 
ent lengths and widths, which are far from forming a belt or bande 
of territorial waters as commonly understood. I find it difficult to 
reconcile such a pattern of territorial waters with the almost uni- 
versal practice of denning territorial waters in terms of miles — 
be they three or four or some other number. Why speak of three 
miles or four miles if a State is at liberty to draw lines which 
produce a maritime belt that is three or four miles wide at the 
base-points and hardly anywhere else? Why speak of measuring 
territorial waters from low-water mark when that occurs at 48 
base-points and hardly anywhere else? It is said that this pattern 
is the inevitable consequence of the configuration of the Nor- 
wegian coast, but I shall show later that this is not so. 

* * * 

Norway has sought to justify the Decree of 1935 on a variety of 
grounds, of which the principal are the following (A, B, C and D) : 

(A) That a State has a right to delimit its territorial waters 
in the manner required to protect its economic and other social 



120 

interests. This is a novelty to me. It reveals one of the funda- 
mental issues which divide the Parties, namely, the difference 
between the subjective and the objective views of the delimitation 
of territorial waters. 

In my opinion the manipulation of the limits of territorial 
waters for the purpose of protecting economic and other social 
interests has no justification in law; moreover, the approbation 
of such a practice would have a dangerous tendency in that it 
would encourage States to adopt a subjective appreciation of their 

rights instead of conforming to a common international standard. 

* * * 

(B) That the pattern of territorial waters resulting from the 
Decree of 1935 is required by the exceptional character of the 
Norwegian coast. 

Much has been said and written in presenting the Norwegian 
case for the delimitation made by the Decree of 1935 of the special 
character of the Norwegian coast, the poverty and barrenness of 
the land in northern Norway, and the vital importance of fishing 
to the population, and so forth, and of the skerries and "Skjaer- 
gaard", which runs round the south, west and north coasts and 
ends at North Cape (Norwegian oral argument, 11th October). 
This plea must be considered in some detail from the point of view 
both of fact and of law. Norway has no monopoly of indentations 
or even of skerries. A glance at an atlas will shew that, although 
Norway has a very long and heavily indented coast-line, there 
are many countries in the world possessing areas of heavily in- 
dented coast-line. It is not necessary to go beyond the British 
Commonwealth. The coast of Canada is heavily indented in almost 
every part. Nearly the whole of the west coast of Scotland and 
much of the west coast of Northern Ireland is heavily indented 
and bears much resemblance to the Norwegian coast. 

Skerry is a word of Norwegian origin which abounds in Scot- 
land, both as "skerry" and as "sgeir" (the Gaelic form). The New 
Oxford Dictionary and any atlas of Scotland afford many illus- 
trations. From this dictionary I extract two quotations : Scoresby, 
Journal of Whale Fishery (1823), page 373: "The islands, or 
skerries, which .... skirt the forbidding coast on the western 
side of the Hebrides"; W. Mcllwraith, Guide to Wigtownshire 
(1875) (in the southwest of Scotland), page 62: "The rocks 
stretch seaward in rugged ledges and skerries." The following 
passage occurs in the Encyclopaedia Britannica (1947), Volume 
20, sub-title "Scotland", page 141 : "The Western Highland coast 
is intersected throughout by long narrow sea-lochs or fjords. 
The mainland slopes steeply into the sea and is fronted by chains 



121 

and groups of islands. . . . The Scottish sea-lochs must be con- 
sidered in connection with those of western Ireland and Norway. 
The whole of this north-western coast line of Europe bears witness 
to recent submergence." 

As was demonstrated to the Court by means of charts, in re- 
sponse to a suggestion contained in paragraph 527 of the Counter- 
Memorial, the north-west coast of Scotland is not only heavily in- 
dented but it possesses, in addition, a modest "island fringe", the 
Outer Hebrides, extending from the Butt of Lewis in a south- 
westerly direction to Barra Head for a distance of nearly one 
hundred miles, the southern tip being about thirty-five miles from 
the Skerryvore lighthouse. At present the British line of territorial 
waters round this island fringe, inside and outside of it, follows 
the line of the coast and the islands throughout without difficulty 
and does not, except for the closing lines of lochs not exceeding 
ten miles, involve straight base-lines joining the outermost points 
of the islands. This is also true of the heavily indented and moun- 
tainous mainland of the north-west coast of Scotland lying inside 
of and opposite to the Outer Hebrides. 

A further factor that must be borne in mind, in assessing the 
relevance of the special character of the Norwegian coast, is that 
not very much of that special character remains after the admis- 
sions (referred to above) made by the United Kingdom during 
the course of the oral proceedings. The main peculiarity that re- 
mains is the jagged outer edge of the island fringe or "skjaer- 
gaard". In estimating the effect of the "skjaergaard" as a special 
factor, it must also be remembered that, running north-west, it 
ends at North Cape, which is near base-point 12. 

Another special aspect of the Norwegian coast which has been 
stressed in the Norwegian argument, and is mentioned in the 
Judgment of the Court, is its mountainous character ; for instance, 
Professor Bourquin said on October 5th: 

"The shore involved in the dispute is an abrupt coast 
towering high above the level of the sea ; that fact is of 
great importance to our case. It is therefore a coast which 
can be seen from a long way off. A mariner approaching 
from the sea catches sight of a mountainous coast, like 
this of Norway, very soon. From this point of view a 
coast like this of Norway cannot be compared with a flat 
coast such as that, for example, of the Netherlands." 

The Norwegian argument also repeatedly insists that the base- 
lines of the Decree of 1935 have been so drawn that the land is 
visible from every point on the outer line. I am unable to see the 



122 ^ ^ i 

relevance of this point because I am aware of no principle or rule 
of law which allows a wider belt of territorial waters to a country 
possessing a mountainous coast, such as Norway, than it does to 
one possessing a flat coast, such as the Netherlands. 

In brief, for the following reasons, I am unable to reconcile 
the Decree of 1935 with the conception of territorial waters as 
recognized by international law — 

(a) because the delimitation of territorial waters by the Decree 
of 1935 is inspired, amongst other factors, by the policy of pro- 
tecting the economic and other social interests of the coastal 
State ; 

(b) because, except at the precise 48 base-points, the limit of 
four miles is measured not from land but from imaginary lines 
drawn in the sea, which pay little, if any, attention to the closing 
lines of lawfully enclosed indentations such as fjords, except 
Varangerfjord and Vestfjord; 

(c) because the Decree of 1935, so far from attempting to 
delimit the belt or bande of maritime territory attributed by 
international law to every coastal State, comprises within its 
limits areas of constantly varying distances from the outer line 
to the land and bearing little resemblance to a belt or bande; 

(d) because the Decree of 1935 ignores the practical need 
experienced from time to time of ascertaining, in the manner cus- 
tomary amongst mariners, whether a foreign ship is or is not 

within the limit of territorial waters. 

* * * 

(C) That the United Kingdom is precluded from objecting to 
the Norwegian system embodied in the Decree of 1935 by previous 
acquiescence in the system. 

Supposing that so peculiar a system could, in any part of the 
world and at any period of time, be recognized as a lawful system 
of the delimitation of territorial waters, the question would arise 
whether the United Kingdom had precluded herself from objecting 
to it by acquiescing in it. An answer to that question involves 
two questions: 

When did the dispute arise? 

When, if at all, did the United Kingdom Government become 
aware of this system, or when ought it to have become aware but 
for its own neglect ; in English legal terminology, when did it re- 
ceive actual or constructive notice of the system? 

When did the dispute arise? Three dates require consideration: 
1906, 1908 and 1911. I do not think it greatly matters which we 
take. As for 1906, Chapter IV of the Counter-Memorial is entitled 
"History of the Dispute since 1906". The Storting Document No. 



123 

17/1927 (to be described later) says (p. 122) that "in 1905 Eng- 
lish trawlers began to fish in the waters along northern Norway 
and Russia", and the Counter-Memorial, paragraph 91, states that 
"British trawlers made their first appearance off the coast of 
Eastern Finnmark towards 1906". Some apprehension occurred 
among the local population. A Law of June 2, 1906, prohibiting 
foreigners from fishing in Norwegian territorial waters, was 
passed, and "since 1907, fishery protection vessels have been sta- 
tioned every year in the waters of Northern Norway" (ibidem, 
paragraph 93). 

As for 1908, Norwegian Counsel told the Court (October 25) 
that "as early as 1908 Norway organized its fishery patrol service 
on the basis of the very lines which were subsequently fixed in the 
1935 Decree." It is strange that these lines were not communicated 
to the United Kingdom in 1908. According to Annex 56 of the 
Counter-Memorial, a Report made by the General Chief of Staff of 
the Norwegian Navy, 

"The instructions given to the naval fishery protection 
vessels as early as 1906 specified two forms of action to 
be taken in regard to trawlers : warning and arrest. 

The first warning, after the trawlers had begun to visit 
our Arctic waters, was given in the summer of 1908 to 
the British trawler Golden Sceptre." 

As for 1911, on March 11th of that year, when the British 
trawler Lord Roberts was arrested in Varangerfjord and the 
master was fined for breach of the Law of 2nd June, 1906, Notes 
were exchanged between the British and Norwegian Governments 
and the Norwegian Foreign Minister had an interview with Sir 
Edward Grey, the British Foreign Minister, in London. At that 
interview, the Norwegian Minister, M. Irgens, "insisted on the 
desirability of England not at that moment lodging a written 
protest" (ibidem, paragraph 98 a), but on the 11th July, 1911, the 
British Government sent a protest to Norway (Counter-Memorial, 
Annex 35, No. 1), in which they maintained that they had "never 
recognized the Varanger and the Vest fjords to be territorial 
waters, nor have they participated in any international agree- 
ment for the purpose of conferring the right of jurisdiction be- 
yond the three-mile limit off any part of the Norwegian coasts". 
On October 13th, 1951, Mr. Arntzen said in the course of his oral 
argument : 

"The Norwegian Government is happy to see the dis- 
pute which has lasted so long submitted for the decision 



124 

of the International Court of Justice. I think it may be 
relevant to recall that M. Irgens, the Norwegian Foreign 
Minister, at the time of his discussions [that is, in 1911] 
with Sir Edward Grey concerning the Lord Roberts inci- 
dent in 1911, was already speaking of the possibility of 
arbitration as a solution to the dispute." 

In later years many other trawlers were arrested, and the 
dispute widened, but it was not until during the course of these 
proceedings that the United Kingdom admitted that the waters of 
Varangerf jord within the line claimed by Norway were Norwegian 
waters. 

Between the arrest of the Lord Roberts in 1911 and May 5th, 
1949, sixty-three British and other fishing vessels were arrested 
for fishing in alleged Norwegian waters, and many others were 
warned (see Counter-Memorial, Annex 56). 

I must now examine the Decrees on which the Decree of 1935 
purports to be based and some of which have been mentioned as 
evidence that the United Kingdom had acquired or ought to have 
acquired notice of the Norwegian system before the dispute 
began. 

(i) The Royal Decree of February 22nd, 1812. The Storting 
Document No. 17/1927 tells us (pp. 506, 507) that after dis- 
cussion between the Admiralty and Foreign Office of the Kingdom 
of Denmark-Norway, it was decided to request the King for a 
royal resolution and the Chancellery defined the matter to be 

"whether the territorial sovereignty, or the point from 
which the sovereign right of protection is fixed, shall be 
measured from the mainland or from the extremest 
skerries". 

Thereupon the King of Denmark and of Norway made the 
Decree, of which a translation will be found on page 134 of the 
Judgment of the Court. The Decree makes no mention of straight 
lines between islands or islets, or of connecting headlands of the 
mainland by any lines at all. 

This is the first of the Decrees mentioned in the preamble as 
the basis of the Decree of 1935, and it has been treated by the 
Norwegian Agent and Counsel as the basis and the starting-point 
of a series of Decrees made in the 19th century and of the Decree 
of 1935 — a kind of Magna Carta. The Judgment of the Court 
attributes "cardinal importance" to it. It therefore deserves close 
examination. For this purpose, I must refer again to Storting 
Document No. 17/1927, which is a Report made by one section 



125 

of the "Enlarged Committee on Foreign Affairs and Constitution 
of the Norwegian Storting'' in April 1927, later translated into 
English and then printed and published by Sijthoff in Ley den in 
1937, under the title of The Extent of Jurisdiction in Coastal 
Waters, by Chrisopher B.V. Meyer, Captain, Royal Norwegian 
Navy. 

On pages 492 ff., this document passes under review a large 
number of 17th and 18th-century Decrees and Proclamations, 
amongst others that of June 9, 1691 (Annex 6, I, to the Counter- 
Memorial), and another of June 13, 1691 (Annex 6, II) which, it 
will be noticed, refers to the area between the Naze in Norway 
and the Jutland Reef. It then refers to the Decree of 1812 and tells 
us that it was "not in reality intended to be more than a regulation 
for the actual purpose: prize cases on the southern coasts". 
Further, on page 507, we are told that the Royal Resolution "was 
communicated .... to all the Governors in Denmark and Nor- 
way whose jurisdictions border the sea, all the prize courts in 
Denmark and Norway and the Royal Supreme Admiralty Court". 
It was communicated "for information" with the additional order : 
"yet nothing of this must be published in printing". 

Page 507 contains the following footnote: 

"( ) N.R.A. Chanc, drafts. As far as is known, the 
resolution was printed for the first time in 1830 in His- 
torisk underretning om landvaernet by J. Chr. Berg. 
Dr. Raestad states that up to that time it was little known 
and apparently no appeal was made to it previously, 
either in Denmark or in Norway." 

Then follow several quotations from Dr. Raestad's Kongens 
Stromme, commenting on the expression "in all cases", which 
should be noted because his interpretation of "in all cases" differs 
from that about to be quoted from this document, and because Dr. 
Raestad stated that, though the Decree of 1812 "was intended 
for neutrality questions", "the one-league limit at that time was 
the actual limit — at any rate the actual minimum limit — also for 
other purposes than for neutrality." We are then told (p. 509) 
that 

"in the light of the most recent investigations it seems 
quite clear that the term 'in all cases' only means 'in all 
prize cases'. The Resolution of 22nd February 1812, 
only completed the foregoing neutrality rescripts by de- 
ciding the question which was left open in 1759 : whether 
the league should be measured from terra firma or from 



126 

the appurtenant skerries, etc. The one-league limit of 
1812 had, therefore, no greater scope than the one- 
league limit mentioned in the previous Royal Resolutions 
of the 18th century, that is to say, it applied only to neu- 
trality questions, and was laid down only for the guidance 
of national authorities, not of foreign Powers." 

The relevance of these passages is that they shew : 

(a) that the Decree of 1812 was little known for some 18 years ; 

(b) that it was intended for administrative purposes and not 
for the guidance of foreign States; 

(c) that, in the opinion of some people, it only applied to 
prize cases and even then, according to this document, only to 
prize cases on the southern coasts. On page 510 the Report speaks 
of "the prize case rule of 22nd February, 1812". 

It is clear that between 1869 and 1935 "the prize case rule 
of 22nd February, 1812" was acquiring a wider connotation, as 
we shall now see. 

It does not matter whether the views expressed in the Storting 
Document No. 17/1927 as to the meaning of the Royal Decree of 
1812 are right or wrong. What is important from the point of view 
of the alleged notoriety of the Norwegian system is that such 
views as to the true import of the Decree of 1812 and its connec- 
tion with the Norwegian system could be held by responsible 
persons in Norway as late as the year 1927. 

(ii) The Les Quatre Freres incident in 1868. This French fish- 
ing boat was turned out of the Vestf jord by the Norwegian author- 
ities. The French Government protested on the ground that the 
Vestf jord was not part of Norwegian territorial waters and 
"serves as a passage for navigation towards the North". Corre- 
spondence between the two Governments ensued, and the Minister 
of Foreign Affairs of Norway and Sweden on November 7th, 
1868, claimed Vestfjord "as an interior sea", which appears to 
have closed the incident. 

(iii) A Royal Decree of October 16th, 1869, provided 

"That a straight line drawn at a distance of 1 geo- 
graphical league parallel to a straight line running from 
the islet of Storholmen to the island of Svinoy shall be 
considered to be the limit of the sea belt for the coast of 
the Bailiwick of Sunnmore, within which the fishing shall 
be exclusively reserved to the inhabitants of the country." 

This, according to Professor Bourquin (October 6), was the 
first application of the Decree of 1812 to fishing. The straight 



127 

base-line connecting the two islands above mentioned was 26 
miles in length. 

The Counter-Memorial contains in Annex 16 a Statement of 
Reasons submitted by the Minister of the Interior to the Crown 
dated October 1st, 1869, about which a few very much compressed 
comments must be made. Firstly, it represents the cry of the small 
man in the open boat against the big man in the decked boat. It 
says that the area in question "has of recent years been invaded 
by a growing number of decked vessels, both Swedish and Nor- 
wegian cutters, from which fishing was practised with heavy 
lines", etc. Apparently the Swedes began it in 1866 and the Nor- 
wegians followed suit. Another passage states that the local 
fishermen "bitterly complained of the fact that intruders on the 
fishing grounds previously visited exclusively by Norwegians were 
mainly foreigners — Swedes". The fear was also expressed that 
fishing boats from other countries, especially France, might soon 
appear on the fishing banks. Accordingly, the Minister had been 
asked "to form an opinion on the possibility of claiming them as 
Norwegian property". (The reference to France was probably 
prompted by the Vestfjord incident of the previous year which 
would be fresh in the departmental mind.) 

The Statement of Reasons invokes the precedent of the 
Decree of 1812. In addition, there is a letter of November 1st, 
1869 (Annex No. 28 to the Counter-Memorial) from the Nor- 
wegian Minister of the Interior to the Swedish Minister of Civil 
Affairs, informing him of the Decree made on the 16th instant 
(? ultimo), and it contains the passage: "it has been desired to 
bring this matter to the notice of the Royal Ministry in order that 
the latter may publish the information in those Swedish districts 
from which the fishing fleets set out for the Norwegian coast". 
(There is no evidence of any notification of the Decree to any other 
State.) The penultimate sentence in this letter is as follows: 

"Moreover, if the fishery in these areas were left 
open, there is reason to believe that the fishermen of many 
foreign countries would visit them, with the result of a 
diminution of the products of the fishery for everybody". 

The Decree was a public document. A large part of the State- 
ment of Reasons is quoted in the Norwegian Report of a Com- 
mission on the Delimitation of Territorial Waters of 1912, but, 
so far as I am aware, the Statement of Reasons was not published 
at the time of making the Decree. 

The French Government — probably on the qui-vive by reason 
of the Vestfjord incident of the previous year — became aware of 



128 

the Decree of 1869 two months later and a diplomatic correspond- 
ence between the two Governments ensued, in which the French 
Government contended that "the limits for fishing between 
[Svindy and Storholmen] should have been a broken line following 
the configuration of the coast which would have brought it nearer 
that coast than the present limit. ,, The last item in this corre- 
spondence is a Note from the French Charge d'Affaires at Stock- 
holm to the Foreign Minister of Norway and Sweden, dated July 
27, 1870, which referred to "the future consequences .... that 
might follow from our adhesion to the principles laid down in the 
Decree", and stated that "this danger .... could easily be 
avoided if it were understood that the limit fixed by the Decree 
of October 16th does not rest upon a principle of international 
law, but upon a practical study of the configuration of the coasts 
and of the conditions of the inhabitants", and offered to recognize 
the delimitation de facto and to join in "a common survey of the 
coasts to be entrusted to two competent naval officers". It would 
appear that the French Government wished to protect itself 
against a de jure recognition of principle. Meanwhile, on July 19, 
the Franco-Prussian war had broken out, and there the matter 
has rested ever since. 

(iv) A Royal Decree of September 9th, 1889, extended the 
limit fixed by the Decree of 1869 northward in front of the dis- 
tricts of Romsdal and Nordmore by means of a series of four 
straight lines, connecting islands, totalling about 57 miles, so that 
the two Decrees of 1869 and 1889 established straight base-lines 
of a total length of about 83 miles. The Decree of 1889 was also 
motivated by a Statement of Reasons submitted by the Minister of 
the Interior to the Crown, which was included in a publication 
called Departements-Tidende of March 9, 1890. This Statement of 
Reasons, which also refers to the Decree of 1812, indicates the 
necessity of empowering the Prefect responsible for Nordmore 
and Romsdal to make regulations prohibiting fishing boats from 
lying at anchor at certain points on the fishing grounds during 
February and March. It makes no reference to foreign vessels. 

The question thus arises whether the two Decrees of 1869 and 
1889, affecting a total length of maritime frontier of about 83 
miles, and connecting islands but not headlands of the mainland, 
ought to have been regarded by foreign States when they became 
aware of them, or ought but for default on their part to have be- 
come aware, as notice that Norway had adopted a peculiar system 
of delimiting her maritime territory, which in course of time 
would be described as having been from the outset of universal 
application throughout the whole coast line amounting (without 



129 

taking the sinuosities of the fjords into account) to about 3,400 
kilometres (about 1,830 sea-miles), or whether these Decrees 
could properly be regarded as regulating a purely local, and 
primarily domestic, situation. I do not see how these two Decrees 
can be said to have notified to the United Kingdom the existence 
of a system of straight base-lines applicable to the whole coast. 
In the course of the oral argument, Counsel for the United King- 
dom admitted that the United Kingdom acquiesced in the lines 
laid down by these Decrees as lines applicable to the areas which 
they cover. 

(v) A Decree of January 5th, 1881, prohibited whaling during 
the first five months of each calendar year 

"along the coasts of Finnmark, at a maximum distance 
of one geographical league from the coast, calculating 
this distance from the outermost island or islet, which is 
not covered by the sea. As regards the Varangerfjord, 
the limit out to sea of the prohibited belt is a straight line, 
drawn from Cape Kibergnes to the River Grense-Jakob- 
selv. It must thereby be understood, however, that the 
killing or hunting of whales during the above-mentioned 
period will also be prohibited beyond that line at dis- 
tances of less than one geographical league from the coast 
near Kibergnes." 

Thus, while expressly fixing a straight base-line across the 
mouth of the Varangerfjord (which is no longer in dispute 
in this case) , the Decree makes no suggestion and gives no indi- 
cation that it instituted a system of straight base-lines from 
the outermost points on the mainland and islands and rocks at any 
other part "along the coasts of Finnmark'\ I find it difficult to 
see how this Decree can be said to have given notice of a Nor- 
wegian system of straight base-lines from Traena in the west to 
the Russian frontier in the east. 

(vi) The 1881 Hague Conference regarding Fisheries in the 
North Sea resulting in the Convention of 1882. The Judgment of 
the Court refers to this incident and draws certain conclusions 
from it. This Conference was summoned upon the initiative of 
Great Britain with a view to the signature of a Convention as to 
policing the fisheries in the North Sea. The following States 
were represented: Germany, Belgium, Denmark, France, Great 
Britain, Sweden, Norway, the delegate of the last-named being 
M.E. Bretteville, Naval Lieutenant and Chief Inspector of Herring 
Fishery. The intention was that the Convention should operate 
on the high seas and not in territorial waters, and consequently 



130 

it was necessary to define the extent of the territorial waters 
within the area affected. The proces-verbaux of the meetings are 
to be found in a British White Paper C. 3238, published in 1882. 

The northern limit of the operation of the Convention was 
fixed by Article 4 at the parallel of the 61st degree of latitude, 
which is south of the area in dispute in this case. 

At the second session of the Conference, the question of Ter- 
ritorial Waters was discussed, and the following statement appears 
in the proces-verbaux: 

"The Norwegian delegate, M.E. Bretteville, could not 
accept the proposal to fix territorial limits at 3 miles, par- 
ticularly with respect to bays. He was also of opinion that 
the international police ought not to prejudice the rights 
which particular Powers might have acquired, and that 
bays should continue to belong to the State to which they 
at present belong." 

Strictly speaking, there was no need for the Norwegian dele- 
gate to refer to the Decree of 1869 because the Convention deals 
with the area south of the parallel of the 61st degree of latitude, 
but if a system of straight base-lines had already been adopted 
by Norway in 1881 as being of general application all round the 
coast, it is surprising that he made no reference to it at a Con- 
ference at which all the States primarily interested in fishing in 
the North Sea were represented, and as a result of which all, 
except Norway and Sweden, accepted the provisions of Article II 
of the Convention, of which the following is an extract : 

"Article II 

"The fishermen of each country shall enjoy the exclu- 
sive right of fishery within the distance of 3 miles from 
low-water mark along the whole extent of the coasts of 
their respective countries, as well as of the dependent 
islands and banks. 

"As regards bays, the distance of 3 miles shall be meas- 
ured from a straight line drawn across the bay, in the 
part nearest the entrance, at the first point where the 
width does not exceed 10 miles." 

The Convention was eventually signed and ratified by all the 
States represented except Norway and Sweden. 

This incident, to which I attach particular importance, induces 
me to put two questions : 

(a) If a Norwegian system of delimiting territorial waters by 
means of straight base-lines had been in existence since 1869 



131 

(only 12 years earlier), could the Norwegian delegate, the Chief 
Inspector of Herring Fishery, have found a more suitable op- 
portunity of disclosing its existence than a Conference of Gov- 
ernments interested in fishing in the North Sea? In fact, could 
he have failed to do so if the system existed, for it would have 
afforded a conclusive reason for inability to participate in the 
Convention of 1882? 

(b) Could any of the Governments which ratified this Con- 
vention, knowing that Norway claimed four miles as the width 
of territorial waters and claimed her fjords as internal waters, be 
affected by the abstention of Norway with notice of the existence 
of a system which one day in the future would disclose long 
straight base-lines drawn along a stretch of coast line abcut 560 
miles in length (without counting fjords and other indentations), 

and which is applicable to the whole coast? 

* ♦ * 

Paragraph 96 of the Counter-Memorial, in discussing the events 
of the year 1908, states that 

"it may be asked why Norway did not from the begin- 
ning use force on all her territorial waters to apply the 
existing laws relating to foreign fishermen , \ . . . "In 
this respect it must be remembered that Norway had but 
recently acquired a separate diplomatic service, follow- 
ing the dissolution of the union with Sweden in 1905." 

It is possible that this fact may explain the absence of any cate- 
gorical assertion of the Norwegian system of straight base- 
lines as a system of universal application along the Norwegian 
coasts and the notification of that system to foreign States. But 
even if this is the explanation, it is difficult to see why it should 
constitute a reason why foreign States should be affected by 
notice of this system and precluded from protesting against it 

when it is enforced against them. 

* * * 

In these circumstances, I do not consider that the United King- 
dom was aware, or ought but for default on her part to have 
become aware, of the existence of a Norwegian system of long 
straight base-lines connecting outermost points, before this dis- 
pute began in 1906 or 1908 or 1911. 

* * * 

I must refer very briefly to certain incidents occurring after 
the dispute began, though they have no bearing on the question 
of acquiescence. Some of them are dealt with in the Judgment 
of the Court or in other Individual Opinions. 



132 

In 1911, the Norwegian Government appointed a "Commission 
for the Limits of Territorial Waters in Finnmark", which re- 
ported on February 29th, 1912. A copy of Part I, General, was 
translated into French and sent "unofficially " to the United King- 
dom Government. 

The following passage occurs on page 20 of this Part I: 

"En general, dans les cas particuliers, on prendra le 
plus surement une decision en conformite avec la vielle 
notion juridique norvegienne, si Ton considere la ligne 
fondamentale comme etant tiree entre les points les plus 
extremes dont il pourrait etre question, nonobstant la 
longueur de la ligne." 

This, is clearly the language of a proposal. The tenses of the 
verbs should be noted. 

On the same day, "the Commission presented Report No. 2 
'Special and Confidential Part', containing proposals for the def- 
inite fixing of base-lines around Finnmark'' (Counter-Memorial, 
paragraph 104) . In 1913 a confidential Report was made upon the 
proposed base-lines on the coasts of the two other provinces con- 
cerned. Nordland and Troms (ibidem, paragraph 105). It appears 
(ibidem) that the base-points proposed in these confidential Re- 
ports are those ultimately adopted by the Decree of 1935; the 
confidential Reports were not disclosed until 1950 when they ap- 
peared as Annexes 36 and 37 of the Counter-Memorial. 

* * * 

The Judgment of the Court refers to the Judgment of the Su- 
preme Court of Norway in the St. Just case in 1934, in which 
that British vessel was condemned for fishing in territorial waters 
under the Law of 1906. It is clearly a decision of high authority. 
From 1934 onwards, it is conclusive in Norway as to the meaning 
of the Decree of 1812 and as to its effect, whether or not it has 
been specifically applied to portions of the coast by later Decrees. 
But this Court, while bound by the interpretation given in the St. 
Just decision of Norwegian internal law, is in no way precluded 
from examining the international implications of that law. It is 
a well-established rule that a State can never plead a provision of, 
or lack of a provision in, its internal law or an act or omission of 
its executive power as a defence to a charge that it has violated 
international law. This was decided as long ago as in the Geneva 
Arbitration of 1870-1871 on the subject of the Alabama Claims, 
when the British Government pleaded that it had exercised all the 
powers possessed by it under its existing legislation for the pur- 
pose of preventing the Alabama from leaving a British port and 



133 

cruising against Federal American shipping, an omission which 
cost Great Britain a large sum of money. 

The St. Just decision is important in the sense that after the 
decision, the existence of a Norwegian system of straight base- 
lines cannot be denied either within Norway or on the interna- 
tional plane. Only eight years earlier there had occurred the 
Deutschland case (a case of an attempt by a German vessel to sell 
contraband spirits) (Annex 9 to the Memorial and Annex 47 to 
the Counter-Memorial and Annex 31 to the Reply) , in which the 
Norwegian Supreme Court, by a majority of 5 to 1, quashed a con- 
viction by an inferior Court which had been upheld by the Court 
of Appeal. In the Deutschland case, which has now been over- 
ruled by the St. Just, it was possible for so distinguished a Nor- 
wegian jurist as the late Dr. Raestad (much quoted by both 
Parties in this case) to say in the Opinion supplied by him at the 
request of the Public Prosecutor that: 

"The question arises, however, whether in the present 
case the extent of the maritime territory must be deter- 
mined from islands, islets and isolated reefs, or — as the 
Court of First Instance has done — from imaginary base- 
lines drawn between two islands, islets or reefs and, if 
necessary, how these base-lines are to be drawn. A dis- 
tinction must be made here. On the one hand, the problem 
arises whether according to international law a State is 
entitled to declare that certain parts of the adjoining sea 
fall under its sovereignty in certain — or all — respects. 
On the other hand, the question may arise whether a 
State under international law, or by virtue of its own 
laws, is entitled to consider that its national legislation 
in the determined case extends to these same parts of 
the adjoining sea when it has not yet been established 
that its sovereignty extends that far. A State may have 
a certain competence without having made use of it." 

and later 

"Neither the letters patent [that is, in effect, the 
Decree of 1812] nor, if they exist, the supplementary 
rules of customary law, prescribe how and between 
what islands, islets or rocks the base-lines should be 
drawn. . . ." 

It does not greatly matter whether Dr. Raestad's views are 
right or wrong. What is important, from the point of view of 
the notoriety of the Norwegian system of straight base-lines, is 



134 

that, in the year 1926, a lawyer of his standing and possessing his 
knowledge of the law governing Norwegian territorial waters 
should envisage the possible alternative methods of drawing base- 
lines, for the Norwegian contention is that the United Kingdom 
must for a long time past have been aware of the Norwegian sys- 
tem of straight base-lines connecting the outermost points on 
mainland, islands and rocks, and had acquiesced in it. 

The following passage occurs in the Deutschland case in the 
Judgment of Judge Bonnevie, who delivered the first judgment as 
a member of the majority: 

"It is also a matter of common knowledge that the 
public authorities have claimed, since time immemorial, 
certain areas, such as for example the Vestfjord and 
the Varangerf jord, as being Norwegian territorial waters 
in their entirety, and that the territorial limits should 
be drawn on the basis of straight lines at the mouth of 
the fjord (sic), regardless of the fact that very great 
areas outside the four-mile limit are thus included in 
Norwegian territory. But, for the greater part of the 
extensive coast of the country, no documents have been 
produced to prove that there exist more precise pro- 
visions, except for the coast off the country of More, for 
which reference is made to the two royal decrees of 1869 

and 1889 referred to above." 

* * * 

Between 1908 and the publication of the Decree of 1935, the 
United Kingdom repeatedly asked the Norwegian Government 
to supply them with information as to their fishery limits in 
northern Norway ; see the Report of the Foreign Affairs Commit- 
tee of the Storting dated June 24th, 1935 (Memorial, Annex 15), 
which states that: "The British Government have repeatedly re- 
quested that the exact limit of this part of the coast should be 
fixed so that it might be communicated to the trawler organiza- 
tions." The Norwegian reply to these requests has been that the 
matter was still under consideration by a Commission or in some 
other way, e.g., in the letter of August 11th, 1931, from the 
Norwegian Ministry of Foreign Affairs, "the position is that the 
Storting have not yet taken up a standpoint with regard to the 
final marking of these lines in all details." 

The impression that I have formed is that what in the argu- 
ment of this case has been called "the Norwegian system" was 
in gestation from 1911 onwards, that the St. Just decision of 
1934 (overruling the Deutschland decision) marks its first public 



135 

enunciation as a system applicable to the whole coast, and that 
the Decree of 1935 is its first concrete application by the Govern- 
ment upon a large scale. I find it impossible to believe that it was 
in existence as a system at the time of the Deutchland decision of 

1926. 

* * * 

(D) Another ground upon which Norwegian counsel have 
sought to justify the Decree of 1935 is that in any case the waters 
comprised within the outer lines fixed by that Decree lie well 
within the ancient fishing grounds of Norway to which she 
acquired a historic title a long time ago. 

I think it is true that waters which would otherwise have the 
status of high seas can be acquired by a State by means of historic 
title, at any rate if contiguous to territorial or national waters; 
see Lord Stowell in The Twee Gebroeders (1801), 3 Christopher 
Robinson's Admiralty Report 336, 339. But, as he said in that case : 

"Strictly speaking, the nature of the claim brought 
forward on this occasion is against the general inclina- 
tion of the law ; for it is a claim of private and exclusive 
property, on a subject where a general, or at least a com- 
mon use is to be presumed. It is a claim which can only 
arise on portions of the sea, or on rivers flowing through 
different States. ... In the sea, out of the range of 
cannon-shot, universal use is presumed. . . . Portions of 
the sea are prescribed for. . . . But the general pre- 
sumption certainly bears strongly against such exclusive 
rights, and the title is a matter to be established, on the 
part of those claiming under it, in the same manner as 
all other legal demands are to be substantiated, by clear 
and competent evidence." 

Another rule of law that appears to me to be relevant to the 
question of historic title is that some proof is usually required 
of the exercise of State jurisdiction, and that the independent 
activity of private individauls is of little value unless it can be 
shown that they have acted in pursuance of a license or some other 
authority received from their Governments or that in some 
other way their Governments have asserted jurisdiction through 
them. 

When the documents that have been submitted in this case in 
support of historic title are examined, it appears to me that, with 
one exception which I shall mention, they are marked by a lack 
of precision as to the waters which were the subject of fishing. 



136 

We get expressions such as "near our fortress of Varshus", "off 
the coasts of Finnmark", "the waters off the coast of this country", 
"near the land", "fish quite close to the coast", "unlawful fishing 
which they have been practising in certain localities", "the waters 
of Finnmark", "fjords or their adjacent waters", "whaling in the 
waters which wash the coast of Norway and its provinces, in 
particular Iceland and the Faroe Islands", etc., etc. 

The exception is the case of the licenses granted to Eric Lorch 
in the seventeenth century (see Annex 101 to Norwegian Re- 
joinder). In 1688 he received a license to fish in, amongst other 
places, "the waters ... of the sunken rock of Gjesbaen"; in 
1692 he received a license to hunt whales; in 1698 he received 
another license to hunt whales, which mentions, among other 
places, "the waters ... of the sunken rock of Gjesbaen". The 
last two licenses state that it is forbidden to "all strangers and 
unlicensed persons to take whales in or without the fjords or their 
adjacent waters, within ten leagues from the land." 

I do not know precisely where the rock called Gjesbaen or 
Gjesbaene is situated, beyond the statement in paragraph 36 
of the Counter-Memorial that it is "near the word Alangstaran", 
which is marked on the Norwegian Chart 6 (Annex 75 to the Re- 
joinder as being outside the outer Norwegian line of the Decree 
of 1935. On the same chart of the region known as Lopphavet there 
appear to be two fishing-banks called "Ytre Gjesboene" and, south 
of it, "Indre Gjesboene", the former being outside the outer line 
of th Decree of 1935 and the latter between the outer line 
and the base-line of that Decree. What the dimensions of the 
fishing-banks are is not clear. The length of the base-line (from 
point 20 to 21) which runs in front of Lopphavet is 44 miles, so 
that even if the licences formed sufficient evidence to prove a 
historic title to a fishing-bank off "the sunken rock of Gjesbaen", 
they could not affect so extensive an area as Lopphavet. The three 
licenses cover a period of ten years and there is no evidence as 

to the duration of the fishery or its subsequent history. 

* * * 

In these circumstances I consider that the delimitation of ter- 
ritorial waters made by the Norwegian Decree of 1935 is in con- 
flict with international law, and that its effect will be to injure the 
principle of the freedom of the seas and to encourage further 
encroachments upon the high seas by coastal States. I regret 
therefore that I am unable to concur in the Judgment of the 
Court. 

(Signed) Arnold D. Mcnair. 



a 



137 

B. Abu Dhabi Arbitration Award 

1. Note. This Award, reprinted below from 1 I.C.L.Q. 247 (1952), is 
included because of its interest as a pioneering discussion of the continental 
shelf doctrine. Although not authoritative except as between the parties, it 
will be influential because of the distinction of the participants. See Young, 
"Lord Asquith and the Continental Shelf," 46 AJ.I.L. (1952), page 512. See, 
also, a discussion of the Award by J. Y. Brinton in 8 Revue Egyptienne de 
Droit International 114 et seq. (1952). An earlier arbitration raising essen- 
tially the same question between the Ruler of Qatar and Petroleum Develop- 
ment (Qatar) Ltd. reached the same result in a decision by Lord Radcliffe 
as Third Arbitrator but without an accompanying opinion. See Annex II 
to a Note on "Problems of the Continental Shelf" (by J. Y. Brinton) in 
Ibid., Vol. 6, p. 165 at p. 171 (1950). 

2. Text of the Award 

In the Matter of An Arbitration between Petroleum Development 
(Trucial Coast) Ltd. and the Sheikh of Abu Dhabi. 

AWARD OF LORD ASQUITH OF BISHOPSTONE 

1. On January 11, 1939, Sheikh Shakhbut of Abu Dhabi, one 
of the Trucial States abutting on the Gulf of Persia from the 
south and west, entered into a written contract in the Arabic 
language with Petroleum Development (Trucial Coast) Ltd., 
whereby the Sheikh purported to transfer to that company the 
exclusive right to drill for and win mineral oil within a certain 
area in Abu Dhabi. That written agreement contained an arbitra- 
tion clause, providing for the reference of disputes arising under 
it to arbitration, for the appointment of two arbitrators, and for 
the appointment of an umpire in the event of the two arbitrators 
being unable to agree. Certain disputes (the nature of which is 
indicated more precisely below, but which relate in substance 
entirely to the area of the concession) have arisen under this 
agreement and were in fact referred to arbitration; the said 
arbitrators did differ ; and appointed me as umpire. According to 
the terms of the arbitration clause, this, my Award, in respect 
of the dispute is final. 

1 A. Abu Dhabi has a coast line of about 275 miles on the 
Gulf. It is bounded on the west by the State of Qatar, and on the 
east by the State of Dubai, both much smaller States. These 
frontiers, however, were and are to some extent vague. So is its 
mainland area, which has been estimated at anything from 10,000 
to 26,000 square miles. The main reason for these wide diver- 
gences is that the depth of hinterland to be included is indeter- 
minate. Abu Dhabi is a large, primitive, poor, thinly populated 
country, whose revenue, until oil was discovered, depended mainly 
on pearling. It is, like the other Trucial Principalities, a British- 



138 

protected State; that is, its external relations are controlled by 
His Majesty. Internally, the Sheikh is an absolute, feudal monarch. 
2. The nature of the disputes referred to arbitration and the 
subject-matter of this Award are formulated in a letter from the 
claimants to the respondent dated July 18, 1949. The letter runs 
as follows : — 

'The arbitration is to determine what are the rights 
of the Company with respect to all underwater areas 
over which the Ruler has or may have sovereignty juris- 
diction control or mineral oil rights. 

"The Company claims that the area covered by the 
Agreement of January 11, 1939 (notably Articles 2 and 
3 thereof), includes in addition to the mainland and 
islands : 

"(1) All the sea-bed and subsoil under the Ruler's 
territorial waters (including the territorial waters of 
his islands), and 

"(2) All the sea-bed and subsoil contiguous thereto 
over which either the Ruler's sovereignty jurisdiction or 
control extends or may hereafter extend, or which now 
or hereafter may form part of the area over which he has 
or may have mineral oil rights." 

The issues: The questions referred to arbitration can usefully 
be paraphrased by expanding them into four, of which the first 
two deal with territorial waters and the second two with the 
submarine area outside territorial waters — 

(i) At the time of the agreement of January 11, 1939, did 
the respondent — the Sheikh — own the right to win mineral oil 
from the subsoil of the sea-bed adjacent to the territorial waters 
of Abu Dhabi? (There seems to be no doubt about this.) 

(ii) If yes, did he by that agreement transfer such right 
to the claimant company? 

(iii) At the time of the agreement did he own (or as the 
result of a proclamation of 1949 did he acquire) the right to 
win mineral oil from the subsoil of any, and, if so, what submarine 
area lying outside territorial waters? 

(iv) If yes, was the effect of the agreement to transfer such 
original or acquired rights to the claimant company? (The Sheikh 
in 1949 — 10 years after this agreement — purported to transfer 
these last rights to an American company — the "Superior Cor- 
poration" : which the Petroleum Development Company claim he 






139 

could not do, since he had already 10 years earlier parted with 
these same rights to themselves.) 

I would add that the parties requested me to express a view 
both on question (iii) and on question (iv), even if owing to the 
answer given to one of these questions, the other should become 
academic ; and the view expressed upon it at best an obiter dictum. 

3. The terms of the agreement: The terms of the agreement 
which are mainly relevant to the determination of these questions 
are articles 2, 3, 12a, 1 and 17; from which I proceed to quote 
certain passages. 

4. The agreement having originally been in the Arabic tongue, 
considerable differences have arisen as to what is and what is not 
an accurate translation. This applies particularly to what is the 
most crucial article of all, namely article 2. Although, as will later 
appear, the divergences between those translations are not im- 
portant, I think I ought for completeness to set out the rival 
translations. In the translation originally relied upon by the 
claimant company, the wording of article 2 is as follows: — 

"Article 2. (a) The area included in this Agree- 
ment is the whole territory subject to the rule of the 
Ruler of Abu Dhabi and its dependencies, and all its 
islands and territorial waters. And if in the future there 
should be carried out a delimitation of the territory be- 
longing to Abu Dhabi, by arrangement with other gov- 
ernments, then the area (of this Agreement) shall 
coincide with the boundaries provided in such delimita- 
tion. 

"(b) If in the future a Neutral Zone should be formed 
adjacent to the territories of Abu Dhabi and the rights 
of rule over such Neutral Zone be shared between the 
Ruler of Abu Dhabi and another Ruler, then the Ruler 
of Abu Dhabi undertakes that this Agreement shall in- 
clude all the mineral oil rights which belong to him in 
such Zone. 

"(c) The Company shall not undertake any works in 
areas used and set apart for places of worship or sacred 
buildings or burial grounds." 

In the translation of this article relied upon by the respondent, 
the Sheikh, the wording is as follows : — 

"Article 2. (a) The area included in this Agreement 
is the whole of the lands which belong to the rule of the 



140 

Ruler of Abu Dhabi and its dependencies and all the 
islands and the sea waters which belong to that area. And 
if in the future the lands which belong to Abu Dhabi are 
defined by agreement with other States, then the limits of 
the area shall coincide with the limits specified in this 
definition. 

" (b) If in the future a Neutral Area should be estab- 
lished adjacent to the lands of Abu Dhabi and the rights 
of rule over such Neutral Area be shared between the 
Ruler of Abu Dhabi and another Ruler, then the Ruler 
of Abu Dhabi undertakes that this Agreement shall in- 
clude what mineral oil rights he has in that area. 

"(c) The Company shall not undertake any works in 
areas used and set apart for places of worship or sacred 
buildings or burial grounds." 

Article 3 of the Agreement runs as follows in the translation 
relied upon by the claimants : 

"Article 3. The Ruler by this Agreement grants to 
the Company the sole right, for a period of 75 solar years 
from the date of signature, to search for, discover, drill 
for and produce mineral oils and their derivatives and 
allied substances within the area, and the sole right to 
the ownership of all substances produced, and free dis- 
posal thereof both inside and outside the territory : pro- 
vided that the export of oil shall be from the territory of 
the Concession direct without passing across any adja- 
cent territory. 

"And it is understood that this Agreement is a grant 
of rights over Oil and cannot be considered an Occupa- 
tion in any manner whatsoever. ,, 

In the translation relied up by the respondent the only differ- 
ence is the wholly immaterial one that "dig for" appears in lieu 
of "drill for." 

Article 12 (a) runs as follows : 

In the translation relied upon by both parties: — 

"Article 12. (a) The Ruler shall have right at any 
time to grant to a third party a Concession for any sub- 
stances other than those specified in Article 3, on condi- 
tion that this shall have no adverse effect on the opera- 
tions and rights of the Company." 



141 

Article 1 defines the expression "The Ruler" in the translation 
relied upon by both parties as follows: — 

"Article 1. The expression "The Ruler" includes 
the present Ruler of Abu Dhabi and its dependencies and 
his heirs and successors to whom may in future be en- 
trusted the rule of Abu Dhabi." 

Article 17 is in these terms : 

In the translation relied upon by the claimants: — 

"Article 17. The Ruler and the Company both de- 
clare that they intend to execute this Agreement in a 
spirit of good intentions and integrity, and to interpret 
it in a reasonable manner. The Company undertakes to 
acknowledge the authority of the Ruler and his full 
rights as Ruler of Abu Dhabi and to respect it in all 
ways, and to fly the Ruler's flag over the Company's 
buildings." 

In the translation relied upon by the respondents: — 

"Article 17. The Ruler and the Company both de- 
clare that they base their ivork in this Agreement on 
goodwill and sincerity of belief and on the interpretation 
of this Agreement in a fashion consistent with reason. 
The Company undertakes to acknowledge the authority of 
the Ruler and his full rights as Ruler of Abu Dhabi and to 
respect it in all ways, and to fly the Ruler's flag over 
the Company's buildings." 

The variation between the two translations of Article 17 
would seem immaterial. 

5... Order in which questions considered: 

The order in which I propose to consider the questions raised 
by the arbitration is the following: — 

(a) What is the true translation of the Agreement? 

(b) What is the "Proper Law" of the Agreement, that is, the 
law applicable in interpreting it? 

(c) If that law were applied to the bare language of the Agree- 
ment, and no regard were paid either (1) to the so-called doctrine 
of the "Continental Shelf" or, (2) to the negotiations leading up 
to its signature, what construction ought to be placed on those 
of its provisions which are the subject-matter of the present 
dispute? 



142 

(d) What is the substance and history of the doctrine of the 
Continental Shelf? 

(e) Is it an established rule of International Law? 

(f) If it were, would it operate in any, and if so, what way 
to modify the construction of the contract which would prevail 
in its absence? 

(g) If not, did the negotiations leading up to the execution of 
the contract have any such modifying operation? 

I will then record my conclusions in paragraph 6. 

/ now revert to paragraph 5, taking its subparagraphs in turn. 

(a) Translations: I have indicated the two rival translations of 
the contract of 1939. There is in this matter little conflict; and 
there would probably have been even less but for the circum- 
stance that the Arabic of the Gulf, in which the contract is 
framed, is an archaic variety of the language, bearing, I was 
told, some such relation to modern current Arabic as Chaucer's 
English does to modern English. Such discrepancies, however, as 
exist between the two translations are fortunately trivial, and the 
claimants were willing for purposes of argument to accept the 
translation put forward on behalf of the respondent. I therefore 
adopt that translation in what follows. 

(b) What is the "Proper Law" applicable in construing this 
contract? This is a contract made in Abu Dhabi and wholly to be 
performed in that country. If any municipal system of law were 
applicable, it would prima facie be that of Abu Dhabi. But no such 
law can reasonably be said to exist. The Sheikh administers a 
purely discretionary justice with the assistance of the Koran; 
and it would be fanciful to suggest that in this very primitive 
region there is any settled body of legal principles applicable 
to the construction of modern commercial instruments. Nor can 
I see any basis on which the municipal law of England could 
apply. On the contrary, Clause 17 of the agreement, cited above, 
repels the notion that the municipal law of any country, as such, 
could be appropriate. The terms of that clause invite, indeed pre- 
scribe, the application of principles rooted in the good sense and 
common practice of the generality of civilised nations — a sort of 
"modern law of nature." I do not think that on this point there is 
any conflict between the parties. 

But, albeit English municipal law is inapplicable as such, some 
of its rules are in my view so firmly grounded in reason, as to form 
part of this broad body of jurisprudence — this "modern law of 
nature." For instance, while in this case evidence has been ad- 
mitted as to the nature of the negotiations leading up to, and of 
the correspondence both preceding and following the conclusion 



143 

of the agreement, which evidence as material for construing the 
contract might, according to domestic English law be largely 
inadmissible, and to this extent the rigid English rules have been 
disregarded ; yet on the other hand the English rule which attrib- 
utes paramount importance to the actual language of the written 
instrument in which the negotiations result seems to me no mere 
idiosyncrasy of our system, but a principle of ecumenical validity. 
Chaos may obviously result if that rule is widely departed from; 
and if, instead of asking what the words used mean, the inquiry 
extends at large to what each of the parties meant them to mean, 
and how and why each phrase came to be inserted. 

The same considerations seem to me to apply to the principle 
expressio unius est exclusio alterius. I defer entirely to the warn- 
ings given by Wills J. and Lopes L.J. in the case of Colquhoun v. 
Brooks (19 Q.B.D. 400, at p. 406 ; 21 Q.B.D. 52, at p. 65) , as to the 
possibilities (and indeed the frequency) of its misapplication. But 
confined within its proper borders it seems to me mere common 
sense. (If I have a house and a garden and 200 acres of agricul- 
tural land and if I recite this and let to X "my house and garden," 
it seems obvious that the 200 acres are excluded from the lease.) 

Much more dubious to my mind is the application to this case 
of certain other English maxims relied on by one or the other 
party in this case. For instance, verba chartarum fortius ac- 
cipiuntur contra proferentem: or the rule that grants by a sover- 
eign are to be construed against the grantee. The latter is an 
English rule which owes its origin to incidents of our own feudal 
polity and royal prerogative which are now ancient history; and 
its survival, to considerations which, though quite different, seem 
to have equally little relevance to conditions in a protected State 
of a primitive order on the Persian Gulf. 

(c) The next point for consideration is what construction the 
words of the contract (in particular those of articles 2 and 3, 
which are crucial) would bear, if (1) no regard were had to the 
doctrine of the so-called "Continental Shelf" or "submarine area," 
and (2) no regard were had to the negotiations preceding the 
Agreement or to the correspondence accompanying it. It may 
help in the first place to brush aside these complicating factors 
and consider the bare language of the Agreement itself ; reintro- 
ducing the complications at a later stage. 

Articles 2 and 3 define the area within which the concession is 
to operate and therefore touch the heart of the dispute; which 
turns entirely on the extent of that area. 

Article 2 opens with the words "The area included in this 
Agreement." "Included" for what purpose? This question remits 



144 

us to article 3, which provides that the Ruler of Abu Dhabi grants 
to the claimant company the "sole right" for a period of 75 years 
to "discover, dig for and produce" mineral oils and their deriva- 
tives and allied substances "within the area." The "sole right" 
shortly, is a right to win petroleum from the "area" in question. 
What area? Turning back to Article 2 we find the area includes 
"the whole of the lands which belong to the rule of the Ruler of 
Abu Dhabi and their dependencies." The sentence does not end 
there. It goes on with the words "and all the islands and sea waters 
which belong to that area." 

What does the word "and" mean in this connection? In its most 
natural sense it surely means "plus." It introduces an addendum 
to something which has gone before. (I discuss an alternative 
meaning suggested for it below) . But if it simply means "plus," 
then the expression "the whole of the lands which belong to the 
rule of the Ruler" cannot be read literally ; for read literally that 
phrase would include in any case the islands, and probably the 
territorial waters, and it would not be necessary or sensible to 
make these items addenda. On this meaning of "and," the "land" 
must be limited to the mainland (no doubt excluding inland or 
landlocked waters in an indented coast) . What, on this basis, does 
the second addendum mean? viz., "the sea waters which belong 
to that area?" Placing oneself in th year 1939 and banishing from 
one's mind the subsequent emergence of the doctrine of the 
"Shelf" and everything to do with the negotiations, I should have 
thought this expression could only have been intended to mean the 
territorial maritime belt in the Persian Gulf, which is a three- 
mile belt; together with its bed and subsoil, since oil is not won 
from salt water. In what other sense at that time could sea 
waters be said to "belong" to a littoral power or to the "rule of 
the Ruler?" In point of fact, that is the meaning the claimant 
company were asserting for the expression as late as March, 
1949, ten whole years after the contract (see letter page 86A 
of the Correspondence) . 

Even if "and" had a different signification, not cumulative but 
epexegetic, such as "and mark you, in case you are in doubt, I 
include in the 'lands' the islands and sea waters which belong 
to the area," I should still hold, in the absence of what I have 
termed the two complicating factors, that the Concession covered 
the sea-bed and subsoil of the territorial belt. Nothing less. The 
only question would be whether it covered more. 

Conclusion as to territorial waters' subsoil: I therefore hold or 
find that the subsoil of the territorial belt is included in the 
Concession. Neither the ambiguity, if any, of the word "and" 



145 

nor any of the considerations dealth with hereafter affect this 
conclusion. In particular I cannot accept the argument put for- 
ward for the respondent that sea waters are merely "included" as 
a means of access to dry land, whether mainland or insular. To 
read the word "included," in the Concession, as meaning in the 
case of the mainland and islands "included as petroliferous areas" : 
and to read it in relation to the "sea waters" as something totally 
different, namely, "included as means of access to the petroliferous 
areas," seems to me unjustifiable, if not perverse. 

I am not impressed by the argument that there was in 1939 no 
word for "territorial waters" in the language of Abu Dhabi, or 
that the Sheikh was quite unfamiliar with that conception. Mr. 
Jourdain had none the less been talking "prose" all his life because 
the fact was only brought to his notice somewhat late. Every State 
is owner and sovereign in respect of its territorial waters, their 
bed and subsoil, whether the Ruler has read the works of Bynker- 
shoek or not. The extent of the Ruler's Dominion cannot depend 
on his accomplishments as an international jurist. 

So far affirmatively. Negatively (still leaving aside what I have 
called the complicating factors) I should certainly in 1939 have 
read the expression "the sea waters which belong to that area" 
not only as including, but as limited to, the territorial belt and 
its subsoil. At that time neither contracting party had ever heard 
of the doctrine of the Continental Shelf, which as a legal doctrine 
did not then exist. No thought of it entered their heads. None such 
entered that of the most sophisticated jurisconsult, let alone the 
"understanding" perhaps strong but "simple and unschooled" of 
Trucial Sheikhs. 

Directed, as I apprehend I am, to apply a simple and broad 
jurisprudence to the construction of this contract, it seems to 
me that it would be a most artificial refinement to read back into 
the contract the implications of a doctrine not mooted till seven 
years later, and, if the view which I am about to express is sound, 
not even today admitted to the canon of international law. How- 
ever, the time has now come to consider this doctrine more 
narrowly. 

(d) The doctrine of the Continental Shelf, its substance and 
history: The expression "Continental Shelf" was first used by a 
geographer in 1898. 1 The legal doctrine which later gathered 
round this geographical term was possibly foreshadowed when in 
1942 England and Venezuela concluded a treaty about the Gulf 



1 It made a fleeting appearance on the legal stage in 1916 : but passed over 
it with "printless feet." 



146 

of Paria providing for spheres of influence in respect of areas 
covered by the high seas and followed by certain annexations 
coincident with these spheres. The doctrine was perhaps first 
explicitly asserted as a legal doctrine (in a very exaggerated form) 
in a proclamation by the Argentine Republic in 1944, but its clas- 
sical enunciation in the form in which it has mainly to be con- 
sidered in this case was the well-known proclamation by President 
Truman of September 28, 1945. 

The substance of the doctrine then proclaimed, as I understand 
it, was this : A coastal power is not surrounded, even at low water, 
by a precipice leading vertically to the bottom of the ocean, per- 
haps two miles below. As a rule the sea-bed shelves very gently 
outwards and downwards for a considerable distance, a distance 
generally (but not invariably) exceeding the three-mile terri- 
torial limit. 2 Again, not always but very often, where the sea 
reaches a depth of about 100 fathoms or (what is much the same 
thing) 200 metres, the edge of this shelf is reached and there is 
a more or less abrupt plunge of the land-mass down to the ocean 
floor. The doctrine of the "Shelf" as proclaimed in the Truman 
Declaration of 1945 arrogated to the United States "jurisdiction 
and control" over "the resources" of the American Continental 
Shelf which was described as "appertaining" to the United States. 

The resources referred to were those of the subsoil of that zone 
of the sea-bed which lies between the limit of the territorial waters 
and the point at which its gently shelving character gives place 
to an abrupt descent. 3 

Several other States followed roughly the same course as the 
United States. For instance, Great Britain (not quite on the same 
lines) in respect of Jamaica and of the Bahamas, and Saudi 
Arabia in respect of parts of the Persian Gulf. Other States 
weighed in with similar claims. These other States fall into two 
groups ; I. Mexico and the Latin and Central American Republics, 
and II. The States which are most directly relevant in this Arbitra- 
tion — States bordering on the Persian Gulf other than Saudi 
Arabia. 



2 If I speak of the three-mile limit and of the Territorial Maritime Belt 
interchangeably, this is only for brevity. I am aware that some States claim 
more than a three-mile belt, but about 80 per cent of the merchant shipping 
in the world is registered in "three-mile" countries; and this is the width of 
territorial waters on the Persian Gulf. 

3 It does not seem to make any difference for the present purpose whether 
as a matter of geological fact the Shelf was built up by erosion of material 
from the unsubmerged portion and by its sedimentation, or whether the Shelf 
was originally there in a denuded state and was subsequently submerged 
by what is poetically called the "transgression of the seas." 



147 

In almost every case the claim was embodied in a decree or 
proclamation. Most often, though not invariably, the proclamation 
was in a "declaratory" form, that is in a form asserting or imply- 
ing that the proclamation was not constitutive of a new right but 
merely recorded the existence of a pre-existing one. 4 

I. The claims of the Latin and Central American Republics 
were often far more ambitious than those of this country, the 
United States and Saudi Arabia; inasmuch as on the one hand 
the former claims were often claims to actual sovereignty over the 
Shelf and its subsoil 5 and on the other hand, and this is more 
important, the claims were often not limited to the Shelf as a 
geological entity or even to the area ending where the depth of the 
sea began to exceed 100 fathoms, but sometimes extended to a 
zone 200 nautical miles from the mainland; an area quite unre- 
lated to the width of the physical Shelf. 6 In these exorbitant forms 
the claims met with protest and resistance ; but in the more modest 
form in which they were advanced by the United States, the United 
Kingdom and Saudi Arabia, they were acquiesced in by the gen- 
erality of Powers, or at least not actively gainsaid by them. 

II. The British Persian Gulf Proclamations: The proclamation 
of Saudi Arabia was followed in 1949 by proclamations issued by 
the Sheikhs of the Trucial States (or on their behalf by the Gov- 
ernment of the United Kingdom qua protecting Power) including 
the Sheikh of Abu Dhabi. All of these last proclamations conform 
broadly in their terms to the Truman proclamation. They mostly 
contain recitals on the following lines: "Whereas it is just that 
the sea-bed and subsoil extending to a reasonable distance from 
the coast should appertain to and be controlled by the littoral 
State to which it is adjacent." The Abu Dhabi proclamation of 
June 10, 1949, provides in its operative part "We, Shakhbut Bin 
Sultan Bin Za'id, Ruler of Abu Dhabi, hereby declare that the sea- 
bed and subsoil lying beneath the high seas in the Persian Gulf con- 
tiguous to the territorial waters of Abu Dhabi and extending 
seaward to boundaries to be determined more precisely as occa- 



4 Declaratory : see, for instance, the proclamations of Saudi Arabia, May 
28, 1949, of the Trucial States including Abu Dhabi of June 10, 1949; the 
Truman proclamation of 1945, though its language is not on this point wholly- 
free from ambiguity: and contrast with these proclamations the language 
of the United Kingdom proclamations in the case of the Bahamas, November 
27, 1949; Jamaica, November 26, 1948; and of the Falkland Islands, De- 
cember 21, 1950, all of which employ somewhat annexatory language such as 
"the boundaries" of the Colony "are hereby extended": language "constitu- 
tive" of rather than merely declaratory of the rights involved. 

5 As in the case of Argentina 1944, Mexico 1945 and Chile 1947. 

6 As in the case of Chile, El Salvador, Honduras and Costa Rica. 



148 

sion arises on equitable principles by us after consultation with the 
neighboring states appertain to the land of Abu Dhabi and are 
subject to its exclusive jurisdiction and control." 

(e) Is the doctrine in any of its forms part and parcel of inter- 
national laiv?: The preceding section calls attention not only to 
the recent origin of the doctrine but to the great variety of forms 
which in its short life it has assumed. Some States claim sover- 
eignty over the Shelf. Others pointedly avoid doing so, claiming 
only "jurisdiction" or "control," "appurtenance" and the like. 
Whatever the scope of the rights claimed, some States assert 
those rights by declaratory proclamations implying their pre- 
existence; others issue proclamations which are on the face of 
them a new departure and designed to be constitutive of title. 
What is the seaward limit of the Shelf? Here again the answers 
given differ. Some States say, "its geological or geographical 
limit, its 'edge' or its 'drop'." Others (whether because their par- 
ticular Shelf has got no edge and has got no drop, or for other 
reasons), say, "the point at which the sea becomes 100 fathoms or 
200 metres deep" ; while yet others say, "a line drawn parallel to 
the coast of the contiguous power and 200 nautical miles from it." 
The 200-mile claim seems to be more or less universally discredited. 
The other two criteria seem on their face much more reasonable. 
But what is the position where as in the Persian Gulf itself, both 
of these more reasonable criteria fail us, because the Shelf not 
only has no edge, but extends continuously across a sea whose 
waters never attain a depth of as much as 100 fathoms? Is it to 
extend outwards to a "reasonable distance" from the coast — the 
expression used in the recital of the Abu Dhabi proclamation? If 
so, what is a "reasonable distance"? Where States are grouped, 
as in this case, round a more or less cylindrical gulf, is the prin- 
ciple "usque ad medium filum" applicable? How could it possibly 
be applied in the case of comparably shallow seas of completely 
irregular configuration, such as the North Sea? Again how are 
rights of whatever character to the subsoil of the Shelf acquired ? 
Can they indeed be acquired at all? Or would their existence in- 
evitably conflict with the "freedom" of the high seas? Before the 
doctrine of the Shelf was promulgated I think the general answer 
might well have been that they cannot be acquired at all — that the 
Shelf is as inappropriable as the high seas that roll or repose 
above it: subject to this reservation, that the sea-bed (not the 
subsoil) of the submarine area, is in certain rare cases, sub- 
ject to a customary right vested in certain States to conduct 
"sedentary" fisheries in such sea-bed. For instance, the right to 



" 149 

fish for sponges, coral, oysters, pearls and chank. 7 Indeed, the 
shallow seas of the Persian Gulf are subject to mutual pearling 
rights by subjects of the various littoral States. If, however, the 
submarine area is capable not merely of being the subject-matter 
of these limited occupational rights over the sea-bed, and pro 
tanto a "res nullius/' is its subsoil as a whole res nullius? that is 
to say, something in which rights can be acquired, but only by 
effective occupation? Or is the position, as the claimants' main 
argument maintains, that the rights in the subsoil of the Shelf 
adhere (and must be taken always to have adhered) ipso jure — 
occupation or no occupation — to the contiguous coastal Power? Or 
failing that, if occupation be indeed necessary ; in cases where it is 
almost impracticable, may proclamations, or similar acts be 
treated as a constructive or symbolic or inchoate occupation (the 
claimants' alternative contention under this head) ? 

Conclusion as to doctrine of the Continental Shelf: Neither the 
practice of nations nor the pronouncements of learned jurists give 
any certain or consistent answer to many — perhaps most — of these 
questions. I am of opinion that there are in this field so many 
ragged ends and unfilled blanks, so much that is merely tentative 
and exploratory, that in no form can the doctrine claim as yet to 
have assumed hitherto the hard lineaments or the definitive status 
of an established rule of international law. 

Whether there ought to exist a rule giving effect to the doctrine 
in one or other and, if so, which of its forms is another question 
and one which, if I had to answer it, I should answer in the affirma- 
tive. There seems to me much cogency on the arguments of those 
who advocate the ipso jure variant of the doctrine. In particular : 
(1) it is extremely desirable that someone, in what threatens to 
become an oil-starved world, should have the right to exploit the 
subsoil of the submarine area outside the territorial limit; (2) the 
contiguous coastal Power seems the most appropriate and con- 
venient agency for this purpose. It is in the best position to exer- 
cise effective control, and the alternatives teem with disadvan- 
tages; (3) there is no reason in principle why the subsoil of the 
high seas should, like the high seas themselves, be incapable of 
being the subject of exclusive rights in any one. The main reasons 
why this status is attributed to the high seas is (i) that they are 
the great highways between nations and navigation of these high- 
ways should be unobstructed, (ii) That fishing in the high seas 



7 An incompletely, sedentary crustacean. I gathered from Professor Waldock 
that a chank moves very slowly: epur si muove: on this whole subject Sir 
Cecil Hurst's Paper read to the Grotius Society in 1948 is the locus classicus. 



ISO 

should be unrestricted (a policy approved by this country ever 
since Magna Carta abolished "several" fisheries). The subsoil, 
however, of the submarine area is not a highway between nations 
and the installations necessary to exploit it (even though sunk 
from the surface into the subsoil rather than tunnelled laterally) 
need hardly constitute an appreciable obstacle to free navigation ; 
nor does the subsoil contain fish. (4) To treat this subsoil as res 
nullius — "fair game" for the first occupier — entails obvious and 
grave dangers so far as occupation is possible at all. It invites 
a perilous scramble. The doctrine that occupation is vital in the 
case of a res nullius has in any case worn thin since the East 
Greenland Arbitration and more especially since that relating 
to Clipperton Island. But leaving that aside, it is difficult to 
imagine any arrangement more calculated to produce international 
friction than one which entitles nation A, it may be thousands 
of miles from nation B, to stake out claims in the Continental 
Shelf contiguous to nation B by "squatting" on B's doorstep — 
at some point just outside nation B's territorial water limit. 

The question just considered, namely not what is but what 
ought to be the rule, is not so irrelevant as it might at first 
sight appear, for the following reason: the International Law 
Commission appointed by the United Nations with M. Francois 
as Rapporteur, has been investigating the doctrine and problems 
of the Continental Shelf. This body has made a number of 
reports of great interest and importance including a draft code 
contained in the Report of the Third Session of the International 
Law Commission (A-CN 4-48) consisting of some six or seven 
short articles of which I will quote the first three. 

Article 1. "As here used the term 'Continental Shelf ' 
refers to the sea-bed and subsoil of the submarine areas 
contiguous to the coast but outside the areas of terri- 
torial waters where the depth of the superjacent waters 
admits of the exploitation of the natural resources of 
the sea-bed and subsoil." 

Article 2. "The Continental Shelf is subject to the 
exercise by the coastal state of control and jurisdiction 
for the purpose of exploring it and exploiting its natural 
resources." 

Article 3. "The exercise by a coastal state of control 
and jurisdiction over the Continental Shelf does not 
affect the legal status of the superjacent waters as high 
seas." 

These draft Articles have been prayed in aid by the claimants 
with the implication that they are, or are intended to be the 



151 

expression of principles which are already part of international 
law, not merely of principles which ought to, or might with 
advantage, form part of that law in future. If this is indeed the 
contention of the claimants, I am of opinion that it is ill-founded. 
It is clear that the Codifying Commission of the International 
Law Commission is charged with two distinct functions, (1) that 
of recording existing rules of international law, and (2) that of 
indicating what the law should be ; promoting as the phrase runs, 
"the progressive development of international law" by preparing 
; draft conventions on "subjects which have not yet been regulated 
\ by international law, or in regard to which the law has not yet 
been sufficiently developed in the practice of States." It seems to 
me clear that these Articles were framed in the discharge, not 
of the first but of the second, of these functions. As the Com- 
mission in paragraph 6 of its commentary on Article 2 says : "The 
Commission has not attempted to base on customary law the 
j right of a State to exercise control and jurisdiction for the limited 
, purposes stated in Article 2, and though numerous proclamations 
i have been issued over the past decade it can hardly be said that 
such unilateral action has already established a new customary 
law." 8 



8 In respect of this interpretation of the suggested Articles — viz., as recom- 
mendations rather than records — the following United Nations documents are 
relevant; besides A-CN. 4-48 of 1951 itself (the suggested Articles and 
commentary thereon) , A-CN. 4-Sr. Q6, 67, 68 and 69 (these last constituting 
the Summary Record of the meetings of the Second Session of the Interna- 
tional Law Commission, 1950). Perhaps I may make this footnote the vehicle 
for an expression of gratitute to those who addressed me, for bringing to 
: my notice some of the voluminous literature, articles, addresses and other 
publications — by experts on the Continental Shelf. Those from which I have 
derived the most instruction include: 

(1) Prof. H. Lauterpacht's article entitled "Sovereignty over Submarine 
Areas," which is likely to be published in the British Year Book of Interna- 
tional Law, Vol. 27, 1950, pp. 376-433, almost simultaneously with this 
Award. 

(2) Professor Waldock's article "The Legal Basis of Claims to the Con- 
tinental Shelf" (to appear in Transactions of the Grotius Society, Vol. 36, 
1950) , previously printed as a paper submitted to the Copenhagen Conference 

i of the International Law Association, 1950. 

(3) Mr. Richard Young's article, "The Legal Status of Submarine Areas 
beneath the High Seas," published in the American Journal of International 

I Law, Vol. 45, 1951, April, pp. 225-249. 

(4) The Memorandum of the Secretary- General of the United Nations on 
the Regime of the High Seas — 2nd Session (1950) of the International Law 
Commission (A-CN. 4-32) . 

(5) The works of Sir Arnold McNair passim; my debt to which is too 
diffused to be particularised by chapter and verse. 



152 

I therefore cannot accept these Articles as recording, or even 
purporting to record, established rules : and if they do not, if they 
are mere recommendations as to what such rules might with 
advantage be, if adopted by International Convention, they clearly 
cannot affect the construction of the contract of 1939. (f ) Pausing 
here before dealing with the last question, viz., the effect, if any of 
the negotiations on the meaning of the contract; and considering 
only the possible effect on the construction of the contract of the 
doctrine of the Shelf; I would summarise as foPows the claim- 
ant's argument and my conclusions about it: The claimant's pri- 
mary contention is (1) that the doctrine of the Shelf is settled 
law, (2) that it always was so, and therefore that it was so in 
1939 ; ergo, the meaning which some of the expressions in the 
contract would or might otherwise have borne is enlarged by 
the inclusion therein of the Shelf. For instance, in Article 2 either 
the expression "the whole of the lands which belong to the rule 
of the Ruler of Abu Dhabi" or the expression "and the sea waters 
which belong to that area," are so enlarged by the inclusion 
of an area in this case measuring over 10,000 square miles of 
extraterritorial marine subsoil. The argument falls to the ground 
if I am right in rejecting the premiss on which it rests, namely, 
that the doctrine of the Shelf has become and, indeed, was already 
in 1939, part of the corpus of international law. 

Again, if I am right in rejecting that premiss, the second way 
in which they put their case also fails; here they rely on the 
proviso to Article 2 which says that "If in future the lands 
which belong to Abu Dhabi are defined by agreement with other 
States, then the limits of the area" (of the Concession) "shall 
coincide with the limits specified in this definition." The argument 
is that the Concession is by these words expressly to extend to 
any after-acquired area of Abu Dhabi, and that the effect of the 
proclamations of 1949, if not retrospective, cannot be less than 
to add the Shelf to the area originally covered as from the date 
when the proclamations were promulgated. This argument also 
fails if I am right in thinking that the premiss on which it rests 
is invalid; but I think it would fail independently of that since 
there has been no definition of anything "by agreement with other 
States," and I should have thought in any case that the definition 
referred to was limited to one affecting dry land, whether epirot 
or insular. 

Lastly : — 

(g) The Negotiations: Did the negotiations attending the 
conclusion of the contract operate to modify what I have held 
to be the construction which the contract would bear if there 



153 

had been no such negotiations? I do not find it possible to base 
any firm conclusion under this head on the use of Arabic words 
such as "ard" or "aradi" or "mantiqua" in the negotiations lead- 
ing up to the Agreement, nor on the fact that the price offered 
for options for oil concessions to the various Trucial Sheikhs 
from 1935 onwards till 1939 were proportioned not to any square 
mileage which included marine areas, but only to the length of 
the respective coast lines; although it is clear that marine areas 
were at this stage quite outside the contemplation of the parties. 

Some evidence was given as to oral interchanges between the 
Sheikh on the one hand and Mr. Lermitte and Brigadier Longrigg 
on the other in the last fortnight or so before the contract was 
signed. The Sheikh in his evidence said, I doubt not in perfect 
good faith, that the meaning of the expression "the sea waters 
belonging to that area" was never discussed with him at all. 
The two witnesses for the company say that it was; they said 
that they explained that the territorial water belt of three miles 
would be included prima facie in the Concession, but added that 
the Sheikh then claimed that he ruled the waters leading out 
from the coast to islands, 50, or one of them even 100, miles out 
from the shore : and that it was in deference to this claim of the 
Sheikh's that the formula "and the sea waters belonging to that 
area" was inserted. 

I am clearly of opinion and find as a fact that the Sheikh's 
recollection was at fault in so far as he said that the phrase in 
question was never mentioned in the negotiations. Mr. Lermitte 
and Brigadier Longrigg cannot have imagined the discussion to 
which they testified. They were excellent witnesses in point both 
of integrity and accuracy; although under the latter head one 
cannot forget that they, like the Sheikh, were testifying to events 
12 years old. I think it more probable than not that the Sheikh 
did claim to rule coastal seas outside the three-mile limit. It is 
not the custom of Oriental potentates to minimise the extent 
of their dominions ; but having regard particularly to subsequent 
correspondence it seems to me far more probable that this was, 
and was taken by the claimants to be, a rhetorical flourish than 
Ithat it was either intended or treated at the time as a sober con- 
tractual stipulation. In a similar vein we say, "Britannia rules 
ithe waves." We do not expect to be taken literally. If we were, 
we should be challenging the doctrine of the freedom of the 
jseas. 

Certainly there is nothing in the correspondence for a whole 
10 years or more after the contract to suggest that the company 
attached any binding contractual quality to this statement, assum- 



154 

ing it was made. As late as March 9, 1949 (p. 84a of the cor- 
respondence) the company were claiming no more (apart from 
the mainland and islands) than the territorial three-mile belt. 
On March 24, 1949, however, a controversial discussion (recorded 
at p. 87 and the following pages of the correspondence) occurs 
between Mr. Lermitte and the Sheikh on which some such claim 
is raised for the first time. The Sheikh is contending that the com- 
pany have no right under the Agreement to drill in any part of 
the sea bed even in the territorial zone. Mr. Lermitte replies, 
"It is recognised universally that the boundaries of any country 
situated on the sea extend automatically three miles into the sea. 
This is what is called 'territorial watersV , In the latter part of 
this interview as recorded, Mr. Lermitte for the first time claims 
more submerged land than that covered by territorial waters, 
and this does not appear to be expressly challenged by the 
Sheikh (p. 88, sub-p. 3) : but Brigadier Longrigg even as late 
as March 25, 1949, in a letter from London is only mooting in a 
very tentative fashion the view that where "exclusive rights 
are granted to a company in respect of the whole of a State 
including its territorial waters then the company is entitled to 
the same rights in respect of the subsoil of the Continental Shelf 
appertaining to that State" (p. 89). If Brigadier Longrigg had 
had a clear express promise of a contractual order from the 
Sheikh of rights in respect of the subsoil in the sea for 50 or a 100 
miles out from the coast, no halting tentative and ex post facto 
recourse to the Shelf doctrine would have been needed. He would 
have had an express undertaking valid without reference to that 
doctrine, and would have said so. 

For these reasons I am of opinion that the prima facie con- 
struction of the Agreement, which in my view excludes from the 
Concession the Shelf, is not modified so as to include it by the 
negotiations incident to the Agreement any more than by the 
(in my view incompletely established) doctrine of the Shelf 
itself. 

6. Conclusions and award: It follows, if I am right, that the 
claimants succeed as to the subsoil of the territorial waters (in- 
cluding the territorial waters of islands) and that the Sheikh 
succeeds as to the subsoil of the Shelf; by which I mean in this 
connection the submarine area contiguous with Abu Dhabi out- 
side the territorial zone; viz., the former is included in the Con- 
cession and the latter is not; and I award and declare to that 
effect. 

I would only add in conclusion a word about the Qatar Arbi- 
tration over which Lord Radcliffe presided. I have reached a 



155 

result in this case which happens closely to correspond with that 
reached by Lord Radcliffe in that case, on other facts and a dif- 
ferent Agreement. There is, in fact, little connection between the 
two Arbitrations if only because in the Qatar Agreement there 
was no allusion in the contract to "sea waters" at all. If Lord 
Radcliffe instead of merely recording his conclusions had ex- 
pounded the principles on which he had reached them, I should 
have derived invaluable and authoritative guidance from such an 
exposition; but as he took the course he did, I am to that extent 
inops consilii, and have only departed from his (perhaps more 
prudent) method and gone into general principles at the express 
invitation of the parties ; to whose legal representatives I would 
wish to express my deep indebtedness. 

(Signed) Asquith of Bishopstone. 

The proceedings were held at 5 Rue le Tasse, Paris, France, 
from Tuesday, August 21, 1951, to Tuesday, August 28, 1951. 

Sir Walter Monckton, K.C.M.G., K.C.V.O., M.C., K.C.; with him 
Professor H. Lauterpacht, K.C., Mr. G.R.F. Morris, and Mr. R. 
Dunn (instructed by Messrs. Bischoff & Co., Solicitors, London), 
appeared on behalf of Petroleum Development (Trucial Coast) 
Ltd. 

Mr. N.R. Fox-Andrews, K.C., with him Professor C.H.M. 
Waldock, K.C., Mr. Stephen Chapman, and Mr. J.F.E. Stephenson 
(instructed by Messrs. Holmes, Son & Pott, Solicitors, London), 
appeared on behalf of His Excellency, the Ruler of Abu Dhabi. 



SECTION II 

MULTILATERAL PROPOSALS, AGREE- 
MENTS, AND CLAIMS OF GENERAL 
SIGNIFICANCE 



section n 

MULTILATERAL PROPOSALS, AGREEMENTS, AND CLAIMS 
OF GENERAL SIGNIFICANCE 

Page 

Bibliographical Note 161 

A. United Nations International Law Commission Report on the 

Law of the Sea (Eighth Session, 1956) 163 

1. Note 163 

2. Text of Articles concerning the Law of the Sea, as contained 

in the International Law Commission's Final Report on the 

Law of the Sea 164 

3. Selected Commentaries by the United Nations International 

Law Commission on the Articles concerning the Law of the 

Sea 185 

B. Report of the International Technical Conference on the Con- 

servation of Living Resources of the Sea — Rome (1955) 214 

1. Note 214 

2. Text of the Report 215 

C. Developments at Inter-American Conferences — 1950-56 237 

1. Introductory Note 237 

2. Draft Convention on Territorial Waters and Related Ques- 

tions. (Inter- American Juridical Committee, Rio de Janeiro, 

July, 1952) 238 

a. Note 238 

b. Text of Draft Convention 238 

3. Resolution XIX, "Territorial Waters and Related Questions", 

of the Second Meeting of the Inter-American Council of 
Jurists (Buenos Aires, 1953), and Reservation of United 
States thereto 239 

a. Note 239 

b. Text of Resolution XIX 239 

4. Resolution LXXXIV, "Conservation of Natural Resources: 

The Continental Shelf and Marine Waters", of the Tenth 
Inter- American Conference (Caracas, 1954) 242 

a. Note 242 

b. Text of Resolution LXXXIV 242 

5. Resolution XIII, "Principles of Mexico and the Juridical 

Regime of the Sea", with Statements and Reservations 
thereto, of the Third Meeting of the Inter- American Council 
of Jurists (Mexico City, 1956) 244 

a. Note 244 

b. Text of Resolution XIII 244 

159 



160 

Page 

6. Resolution I, ''Resolution of Ciudad Trujillo", with State- 
ments of the Delegations appended thereto, of the Inter- 
American Specialized Conference on "Conservation of Nat- 
ural Resources: The Continental Shelf and Marine Waters" 
(Ciudad Trujillo, 1956) 255 

a. Note 255 

b. Text of Resolution 1 256 

D. Chile-Ecuador-Peru Agreements, 1952-1955 264 

1. Introductory Note 264 

2. Agreements between Chile, Ecuador and Peru signed at the 

First Conference on the Exploitation and Conservation of 
the Maritime Resources of the South Pacific, Santiago, 
18 August 1952 265 

a. Declaration on the Maritime Zone 265 

b. Organization of the Standing Committee on the Use and 

Conservation of the Marine Resources of the South 
Pacific 267 

c. Joint Declaration on Fishery Problems in the South 

Pacific 269 

d. Regulations Governing Whaling in the Waters of the 

South Pacific 270 

3. Agreements between Chile, Ecuador and Peru signed at the 

Second Conference on the Exploitation and Conservation of 
the Maritime Resources of the South Pacific, Lima, 4 De- 
cember 1954 275 

a. Agreement Supplementary to the Declaration of Sov- 

ereignty over the Maritime Zone of Two Hundred Miles 

b. Agreement relating to Penalties 275 

c. Agreement relating to Measures of Supervision and Con- 

trol in the Maritime Zones of the Signatory Countries. . 278 

d. Agreement relating to the Issue of Permits for the Ex- 

ploitation of the Maritime Resources of the South Pacific 279 

e. Agreement relating to the Regular Annual Meeting of the 

Standing Committee 281 

f. Agreement relating to a Special Maritime Frontier Zone 281 

4. Final Act of the Third Meeting of the Permanent Committee 

of the Conference on Exploitation and Conservation of the 
Maritime Resources of the South Pacific (Quito), De- 
cember, 1955. (Excerpts) 282 

a. Note 282 

b. Resolution on the Quota of Whalebone Whales to be 

Hunted by Land Stations. (Resolution VIII) 283 

c. Resolution on Quotas for the Pelagic Hunting of Sperm 

Whales. (Resolution IX) 283 

d. Regulations on Permits for Exploitation of the Resources 

of the South Pacific 283 

5. Enforcement Judgment (Opinion) of Peruvian Port Officer 

(1954) 289 

a. Note 289 

b. Text of Judgment 290 



BIBLIOGRAPHICAL NOTE 

The purpose of this note is to cite a number of references for 
possible use in connection with the documents reproduced in the 
remainder of PART II of this volume. No attempt has been made 
to be exhaustive in listing these citations and only those of the 
most general interest are included. References have generally been 
restricted to ones published in the English language and to those 
most likely to be found in libraries accessible to naval officers. 
Generally excluded are articles appearing in the Department of 
State Bulletin. Such articles are, however, often of great value 
and the semi-annual index of the Bulletin can be consulted for 
pertinent citations. Articles dealing with a specific country will 
be mentioned under that country in SECTION VI, infra, as will 
be the references to the views of individual countries appearing 
in International Law Commission documents. 

General textbooks on international law and some specialized 
books contain valuable discussion on the subjects of the high seas, 
territorial seas, the continental self and fisheries. Among general 
books, see Hyde, International Law, Chiefly as Interpreted and 
Applied by the United States (3 volumes, 2nd Revised Edition, 
1945), the leading American text, and Oppenheim's International 
Law, edited by H. Lauterpacht, Vol. I, Peace, (Eighth Edi- 
tion, 1955), and Volume II, Disputes, War and Neutrality, (Sev- 
enth Edition, 1952), the leading British treatise. Another fine 
American text is Fen wick, International Law, (3rd Ed., 1948). 
The best brief text on the international law of peace is Brierly, 
The Law of Nations (5th Ed., 1955). An excellent concise sum- 
mary of the law of the sea in time of peace is contained in Part 
I of The Lata and Custom of the Sea, by H. A. Smith, 2nd 
Edition, with Supplement, 1954) . Part I of Colombos, The Inter- 
national Law of the Sea (3rd Revised Edition, 1954) is also 
useful. A recent specialized text of value is M. W. Mouton, The 
Continental Shelf (1952). With respect to territorial waters, 
Jessup, The Law of Territorial Waters and Maritime Jurisdiction 
(1927) is invaluable. See, also, Masterson, Jurisdiction in Mar- 
ginal Seas (1929) and T. W. Fulton, The Sovereignty of the Sea 
(1911). Gidel, Le droit international public de la mer, in three 
volumes, 1932-34, is also highly recommended. There are numer- 
ous specialized books dealing with fisheries. Of historical interest 
is Fenn, The Origin of the Right of Fishery in Territorial Waters 

161 



162 

(1926) . Two recent monographs are especially helpful : Riesenfeld, 
Protection of Coastal Fisheries under International Law (1942) 
and Leonard, International Regulation of Fisheries (1944). 

There are numerous notes and comments in the American 
Journal of International Law with respect to developments con- 
cerning the continental shelf. Consult Annual Index. Among the 
articles appearing since 1950 in that Journal on the subject, see 
Young, "The Legal Status of Submarine Areas beneath the High 
Seas/' 45 A.J.LL. 225 (1951) ; Boggs, "Delimitation of Seaward 
Areas under National Jurisdiction,'' 45 Ibid., 240 (1951), and 
Kunz, "Continental Shelf and International Law: Confusion and 
Abuse," 50 A.J.LL. 828 (1956). See also Borchard, "Resources 
of the Continental Shelf," 40 Ibid., 53 (1946), and note by 
Bingham, "The Continental Shelf and Marginal Belt," 40 Ibid., 
173 (1946). Among valuable articles appearing in other peri- 
odicals, see Lauterpacht, "Sovereignty over Submarine Areas," 
27 B.Y.B. 376 (1950) ; Boggs, "National Claims in Adjacent 
Seas," 41 Geographical Review 185 (1951) ; and Waldock, "Legal 
Basis of Claims to Continental Shelf," 36 Grotius Society Trans- 
actions 115 (1951). 

Useful articles on territorial waters and high seas questions are 
numerous. In addition to the Lauterpacht article and the two 
articles by Boggs, supra, see Walker, "Territorial Waters: The 
Cannon Shot Rule," 22 B.Y.B. 210 (1945) ; Kent, "The Historical 
Origins of the Three-Mile Limit," 48 A.J.LL. 537 (1954) ; Oda, 
"The Territorial Sea and Natural Resources," 4 I.C.L.Q. 415 
(1955) ; and numerous notes and comments in the American Jour- 
nal of International Laiv, and the British Year Book of Inter- 
national Law. A valuable recent discussion of the law of the sea 
may be found in McDougal and Schlei, "The Hydrogen Bomb 
Tests in Perspective: Lawful Measures for Security," 64 Yale 
Law Journal 648 (1955), at pages 655-695. A condensed version 
by McDougal appears in 49 A.J.LL. 356 (1955). Bishop, "The 
Exercise of Jurisdiction for Special Purposes in High Seas Areas 
Beyond the Outer Limit of Territorial Waters," an interesting 
paper presented to the Inter-American Bar Association in Detroit, 
1949, is printed in 99 Congressional Record 2586 (March 30, 1953, 
House of Representatives). Valuable discussions of territorial 
waters and related questions appear in the 1956 Proceedings of 
the American Society of International Law, by Baxter, Phfister, 
Whiteman, and others. For a useful comparison of the sea rules 
with those governing air space over the territorial sea, see Mar- 
tial, "State Control of the Air Space over the Territorial Sea and 
the Contiguous Zone," 30 Canadian Bar Review 245 (1952). 



163 

The articles, notes and comments on fishery problems are legion. 
Many deal with specific areas or agreements, and will be referred 
to in connection with such areas and agreements. An important 
statement of the United States position on fisheries is Chapman, 
"United States Policy on High Seas Fisheries," 20 Department 
of State Bulletin 67 (1949) . See, also, Selak, "Recent Developments 
in High Seas Fisheries Jurisdiction under the Presidential Proc- 
lamation of 1945," 44 A.J.I.L. 670 (1950). Compare Allen, "Fish- 
ery Proclamation of 1945," 45 Ibid., 177 (1951). 

A. United Nations International Law Commission Report on 
the Law of the Sea (Eighth Session, 1956) 

1. Note. The final report of the International Law Commission on the 
Law of the Sea was completed at its eighth session in Geneva (1956). 
The Report of the Commission on its eighth session was first printed in 
A/CN. 4/104, English, the original being in French. It has been reprinted, 
with necessary corrections, in General Assembly, Official Records, Eleventh 
Session, Supplement No. 9 (A/3159). The text of this latter English transla- 
tion of the articles on the Law of the Sea is reproduced in full below from 
A/3159. Selected commentaries to some of the articles are reproduced there- 
after. In accordance with past practice, the Report has been published in full 
in the January, 1957 issue of the American Journal of International Law 
(51 A.J.I.L. 154). 

The Report was presented to the General Assembly for consideration at 
its eleventh session in the fall of 1956. The Report is of great importance and 
deserves the most careful study. The Commission recommended that it be 
submitted to an international diplomatic conference for possible adoption in 
one or more international conventions. The General Assembly accepted the 
recommendation, and the conference will commence 24 February 1958 at 
Geneva, Switzerland. It is expected to last nine weeks. The special rapporteur 
on the law of the sea was J.P.A. Francois of the Netherlands, a member of 
the Commission. Mr. Francois submitted numerous drafts on the regime of the 
high seas and of the territorial sea. Drafts on the high seas are contained in 
A/CN.4/17 (First Report) ; A/CN.4/42 (Second Report) ; A/CN.4/51 (Third 
Report) ; A/CN.4/60 (Fourth Report) ; A/CN.4/69 (Fifth Report) ; A/CN.4/ 
79 (Sixth Report) ; and A/CN.4/103 (Supplementary Report). Drafts on the 
territorial sea are contained in A/CN.4/53 (First Report) ; A/CN. 4/61, and 
Add. 1, and Add. 1/Corr. 1 (Second Report and annex with report of ex- 
perts) ; A/CN.40/77 (Third Report) ; and A/CN.4/93 (amendments to regime 
of territorial sea proposed by Francois). A final report by Francois on the 
high seas and territorial sea is contained in A/CN. 4/97, and Add. 1, 2, and 3. 
There is a bibliography on the regime of the high seas in A/CN. 4/26, and a 
valuable memorandum by the Secretariat on the law of the sea in A/CN.4/32, 
the authorship of which has been attributed to Gidel. 

Earlier reports of the International Law Commission dealing with the 
regime of the sea may be found in A/1316, pages 21-22; A/1858, page 16 
and pages 17-20; A/2163, page 12; A/2456, pages 12-19; A/2693, pages 
12-21; and A/2934, pages 2-22. Comments of governments on the various 
drafts are referred to under the individual country, infra. Other expressions 



164 

of the views of governments may be found in the summary records of the 
Commission, and in the proceedings of the Sixth Committee of the General 
Assembly. 

Among the outside comments on various drafts may be mentioned Briggs 
on the earlier continental shelf articles in 45 A.J.I.L. (1951), page 338, 
and Young on the same in 46 A.J.I.L. (1952), page 123. Jessup comments on 
the 1954 report on the territorial sea in 49 A.J.I.L. (1953), page 221. Bishop 
comments favorably on the 1955 fishery articles in 50 A.J.I.L. (1956), page 
627. See also, Brittin, Article 3, Regime of the Territorial Sea," 50 A.J.I.L. 
934 (1956). General references to other articles on the subject of the drafts 
are mentioned in the Bibliographical Note, supra. A valuable document pro- 
viding a guide to the legislative history of the various articles in the Report, 
with Annexes giving references to the Commission debates and the comments 
of governments, is the "Reference Guide to the Articles concerning the Laiv of 
the Sea adopted by the International Law Commission at its Eighth Session," 
(1956), A/C.6/L.378, a General Assembly publication for the Sixth Commit- 
tee's eleventh session. See also, Report of the Sixth Committee to the General 
Assembly (A/3520, 6 February 1957), and the Yearbook of the International 
Law Commission, 1956, Vol. I, Summary records of the eighth session, and 
Vol. II, Documents of the eighth session. Similar volumes for earlier and 
subsequent sessions will be published. 

2. Text of Articles Concerning the Law of the Sea, as Contained 
in the United Nations International Law Commission's Final 
Report on the Law of the Sea, Supplement No. 9 (A/3159) 



Articles Concerning the Law of the Sea 

Part I 
TERRITORIAL SEA 
Section I: General 

Juridical Status of the Territorial Sea 

Article 1 

1. The sovereignty of a State extends to a belt of sea adjacent 
to its coast, described as the territorial sea. 

2. This sovereignty is exercised subject to the conditions pre- 
scribed in these articles and by other rules of international law. 

Juridical Status of the Air Space Over the Territorial Sea 
and of Its Bed and Subsoil 

Article 2 

The sovereignty of a coastal State extends also to the air space 
over the territorial sea as well as to its bed and subsoil. 



165 
Section II. Limits of the Territorial Sea 

Breadth of the Territorial Sea 

Article 3 

1. The Commission recognizes that international practice is not 
uniform as regards the delimitation of the territorial sea. 

2. The Commission considers that international law does not 
permit an extension of the territorial sea beyond twelve miles. 

3. The Commission, without taking any decision as to the 
breadth of the territorial sea up to that limit, notes, on the one 
hand, that many States have fixed a breadth greater than three 
miles and, on the other hand, that many States do not recognize 
such a breadth when that of their own territorial sea is less. 

4. The Commission considers that the breadth of the territorial 
sea should be fixed by an international conference. 

Normal Baseline 

Article 4 

Subject to the provisions of article 5 and to the provisions re- 
garding bays and islands, the breadth of the territorial sea is 
measured from the low-water line along the coast, as marked 
on large-scale charts officially recognized by the coastal State. 

Straight Baseline 

Article 5 

1. Where circumstances necessitate a special regime because 
the coast is deeply indented or cut into or because there are 
islands in its immediate vicinity, the baseline may be independent 
of the low-water mark. In these cases, the method of straight base- 
lines joining appropriate points may be employed. The drawing 
of such baselines must not depart to any appreciable extent 
from the general direction of the coast, and the sea areas lying 
within the lines must be sufficiently closely linked to the land 
domain to be subject to the regime of internal waters. Account 
may nevertheless be taken, where necessary, of economic interests 
peculiar to a region, the reality and importance of which are 
clearly evidenced by a long usage. Baselines shall not be drawn 
to and from drying rocks and drying shoals. 

2. The coastal State shall give due publicity to the straight 
baselines drawn by it. 

3. Where the establishment of a straight baseline has the effect 



166 

of enclosing as internal waters areas which previously had been 
considered as part of the territorial sea or of the high seas, a right 
of innocent passage, as defined in article 15, through those waters 
shall be recognized by the coastal State in all those cases where the 
waters have normally been used for international traffic. 

Outer Limit of the Territorial Sea 

Article 6 

The outer limit of the territorial sea is the line every point of 
which is at a distance from the nearest point of the baseline 
equal to the breadth of the territorial sea. 

Bays 

Article 7 

1. For the purposes of these articles, a bay is a well-marked 
indentation whose penetration is in such proportion to the width 
of its mouth as to contain landlocked waters and constitute more 
than a mere curvature of the coast. An indentation shall not, 
however, be regarded as a bay unless its area is as large as, or 
larger than, that of the semi-circle drawn on the mouth of that 
indentation. If a bay has more than one mouth, this semi-circle 
shall be drawn on a line as long as the sum total of the length 
of the different mouths. Islands within a bay shall be included 
as if they were part of the water area of the bay. 

2. The waters within a bay, the coasts of which belong to a 
single State, shall be considered internal waters if the line drawn 
across the mouth does not exceed fifteen miles measured from 
the low-water line. 

3. Where the mouth of a bay exceeds fifteen miles, a closing 
line of such length shall be drawn within the bay. When different 
lines of such length can be drawn that line shall be chosen which 
encloses the maximum water area within the bay. 

4. The foregoing provisions shall not apply to so-called "his- 
toric" bays or in any cases where the straight baseline system 
provided for in article 5 is applied. 

Ports 

Article 8 

For the purpose of delimiting the territorial sea, the outermost 
permanent harbour works which form an integral part of the 
harbour system shall be regarded as forming part of the coast. 



1G7 
Roadsteads 

Article 9 

Roadsteads which are normally used for the loading, unloading 
and anchoring of ships, and which would otherwise be situated 
wholly or partly outside the outer limit of the territorial sea, 
are included in the territorial sea. The coastal State must give due 
publicity to the limits of such roadsteads. 

Islands 

Article 10 

Every island has its own territorial sea. An island is an area 
of land, surrounded by water, which in normal circumstances 
is permanently above high-water mark. 

Drying rocks and drying shoals 

Article 11 

Drying rocks and drying shoals which are wholly or partly 
within the territorial sea, as measured from the mainland or an 
island, may be taken as points of departure for measuring the 
extension of the territorial sea. 

Delimitation of the Territorial Sea in Straits and Off 

Other Opposite Coasts 

Article 12 

1. The boundary of the territorial sea between two States, the 
coasts of which are opposite each other at a distance less than the 
extent of the belts of territorial sea adjacent to the two coasts, 
shall be fixed by agreement between those States. Failing such 
agreement and unless another boundary line is justified by special 
circumstances, the boundary is the median line every point of 
which is equidistant from the nearest points on the baselines 
from which the breadths of the territorial seas of the two States 
are measured. 

2. If the distance between the two States exceeds the extent 
of the two belts of territorial sea, the waters lying between the 
two belts shall form part of the high seas. Nevertheless, if, as a 
consequence of this delimitation an area of the sea not more 
than two miles in breadth should be entirely enclosed within the 
territorial sea, that area may, by agreement between the coastal 
States, be deemed to be part of the territorial sea. 



168 

3. The first sentence of the preceding paragraph shall be 
applicable to cases where both coasts belong to one and the same 
coastal State. If, as a consequence of this delimitation, an area 
of the sea not more than two miles in breadth should be entirely 
enclosed within the territorial sea, that area may be declared by 
the coastal State to form part of its territorial sea. 

4. The line of demarcation shall be marked on the officially 
recognized large-scale charts. 

Delimitation of the Territorial Sea at the Mouth of a 

River 

Article 13 

1. If a river flows directly into the sea, the territorial sea shall 
be measured from a line drawn inter fauces terrarum across the 
mouth of the river. 

2. If the river flows into an estuary the coasts of which belong 
to a single State, article 7 shall apply. 

Delimitation of the Territorial Sea of Two Adjacent States 

Article 14 

1. The boundary of the territorial sea between two adjacent 
States shall be determined by agreement between them. In the 
absence of such agreement, and unless another boundary line is 
justified by special circumstances, the boundary is drawn by 
application of the principle of equidistance from the nearest points 
on the baseline from which the breadth of the territorial sea of 
each country is measured. 

2. The boundary line shall be marked on the officially recognized 
large-scale charts. 



Section III: Right of Innocent Passage 
Sub-section A: General Rules 

Meaning of the Right of Innocent Passage 

Article 15 

1. Subject to the provisions of the present rules, ships of all 
States shall enjoy the right of innocent passage through the 
territorial sea. 

2. Passage means navigation through the territorial sea for 



169 

the purpose either of traversing that sea without entering inter- 
nal waters, or of proceeding to internal waters, or of making 
for the high seas from internal waters. 

3. Passage is innocent so long as the ship does not use the 
territorial sea for committing any acts prejudicial to the security 
of the coastal State or contrary to the present rules, or to other 
rules of international law. 

4. Passage includes stopping and anchoring, but only in so far 
as the same are incidental to ordinary navigation or are rendered 
necessary by force majeure or by distress. 

5. Submarines are required to navigate on the surface. 

Duties of the Coastal State 

Article 16 

1. The coastal State must not hamper innocent passage through 
the territorial sea. It is required to use the means at its disposal to 
ensure respect for innocent passage through the territorial sea 
and must not allow the said sea to be used for acts contrary to 
the rights of other States. 

2. The coastal State is required to give due publicity to any 
dangers to navigation of which it has knowledge. 

Rights of Protection of the Coastal State 

Article 17 

1. The coastal State may take the necessary steps in its terri- 
torial sea to protect itself against any act prejudicial to its 
security or to such other of its interests as it is authorized to 
protect under the present rules and other rules of international 
law. 

2. In the case of ships proceeding to internal waters, the coastal 
State shall also have the right to take the necessary steps to pre- 
vent any breach of the conditions to which the admission of those 
ships to those waters is subject. 

3. The coastal State may suspend temporarily in definite areas 
of its territorial sea the exercise of the right of passage if it 
should deem such suspension essential for the protection of the 
rights referred to in paragraph 1. Should it take such action, 
it is bound to give due publicity to the suspension. 

4. There must be no suspension of the innocent passage of 
foreign ships through straits normally used for international 
navigation between two parts of the high seas. 



170 

Duties of Foreign Ships During Their Passage 

Article 18 

Foreign ships exercising the right of passage shall comply 
with the laws and regulations enacted by the coastal State in 
conformity with the present rules and other rules of international 
law and, in particular, with the laws and regulations relating to 
transport and navigation. 

Sub-section B: Merchant Ships 

Charges to be Levied Upon Foreign Ships 

Article 19 

1. No charge may be levied upon foreign ships by reason only 
of their passage through the territorial sea. 

2. Charges may only be levied upon a foreign ship passing 
through the territorial sea as payment for specific services ren- 
dered to the ship. 

Arrest on Board a Foreign Ship 

Article 20 

1. A coastal State may not take any steps on board a foreign 
ship passing through the territorial sea to arrest any person 
or to conduct any investigation by reason of any crime com- 
mitted on board the ship during its passage, save only in the 
following cases: 

(a) If the consequences of the crime extend beyond the 
ship ; or 

(b) If the crime is of a kind to disturb the peace of the 
country or the good order of the territorial sea; or 

(c) If the assistance of the local authorities has been re- 
quested by the captain of the ship or by the consul of the country 
whose flag the ship flies. 

2. The above provisions do not affect the right of the coastal 
State to take any steps authorized by its laws for the purpose 
of an arrest or investigation on board a foreign ship lying in its 
territorial sea or passing through the territorial sea after leaving 
internal waters. 

3. In considering whether or how an arrest should be made, the 
local authorities shall pay due regard to the interests of naviga- 
tion. 



171 

Arrest of Ships for the Purpose of Exercising Civil 

Jurisdiction 

Article 21 

1. A coastal State may not arrest or divert a foreign ship 
passing through the territorial sea for the purpose of exercising 
civil jurisdiction in relation to a person on board the ship. 

2. A coastal State may not levy execution against or arrest 
the ship for the purpose of any civil proceedings, save only in 
respect of obligations or liabilities incurred by the ship itself 
in the course or for the purpose of its voyage through the waters 
of the coastal State. 

3. The provisions of the previous paragraph are without preju- 
dice to the right of the coastal State, in accordance with its laws, to 
levy execution against or to arrest, for the purpose of any civil 
proceedings, a foreign ship lying in the territorial sea or passing 
through the territorial sea after leaving the internal waters. 

Sub-section C: Government Ships Other Than Warships 

Government Ships Operated for Commercial Purposes 

Article 22 

The rules contained in sub-sections A and B shall also apply 
to government ships operated for commercial purposes. 

Government Ships Operated for Non-Commercial Purposes 

Article 23 

The rules contained in sub-section A shall apply to government 
ships operated for non-commercial purposes. 

Sub-section D: Warships 

Passage 

Article 24 

The coastal State may make the passage of warships through 
the territorial sea subject to previous authorization or notification. 
Normally it shall grant innocent passage subject to the observance 
of the provisions of articles 17 and 18. 



172 

Non-observance of the Regulations 

Article 25 

If any warship does not comply with the regulations of the 
coastal State concerning passage through the territorial sea and 
disregards any request for compliance which may be brought to 
its notice, the coastal State may require the warship to leave the 
territorial sea. 

Part II 
HIGH SEAS 

Section I: General Regime 

Definition of the High Seas 

Article 26 

1. The term "high seas" means all parts of the sea that are 
not included in the territorial sea, as contemplated by Part I, or 
in the internal waters of a State. 

2. Waters within the baseline of the territorial sea are con- 
sidered "internal waters". 

Freedom of the High Seas 

Article 27 

The high seas being open to all nations, no State may validly 
purport to subject any part of them to its sovereignty. Freedom 
of the high seas comprises, inter alia: 

( 1 ) Freedom of navigation ; 

( 2 ) Freedom of fishing ; 

(3) Freedom to lay submarine cables and pipelines; 

(4) Freedom to fly over the high seas. 

Sub-section A: Navigation 

The Right of Navigation 

Article 28 

Every State has the right to sail ships under its flag on the 
high seas. 



173 

Nationality of Ships 

Article 29 

1. Each State shall fix the conditions for the grant of its 
nationality to ships, for the registration of ships in its territory, 
and for the right to fly its flag. Ships have the nationality of the 
State whose flag they are entitled to fly. Nevertheless, for purposes 
of recognition of the national character of the ship by other States, 
there must exist a genuine link between the State and the ship. 

2. A merchant ship's right to fly the flag of a State is evidenced 
by documents issued by the authorities of the State of the 
flag. 

Status of Ships 

Article 30 

Ships shall sail under the flag of one State only and, save 
in exceptional cases expressly provided for in international treaties 
or in these articles, shall be subject to its exclusive jurisdiction 
on the high seas. A ship may not change its flag during a voyage 
or while in a port of call, save in the case of a real transfer of 
ownership or change of registry. 

Ships Sailing under Two Flags 

Article 31 

A ship which sails under the flags of two or more States, using 
them according to convenience, may not claim any of the nationali- 
ties in question with respect to any other State, and may be 
assimilated to a ship without nationality. 

Immunity of Warships 

Article 32 

1. Warships on the high seas have complete immunity from the 
jurisdiction of any State other than the flag State. 

2. For the purposes of these articles, the term "warship" means 
a ship belonging to the naval forces of a State and bearing the 
external marks distinguishing warships of its nationality, under 
the command of an officer duly commissioned by the government 
and whose name appears in the Navy List, and manned by a crew 
who are under regular naval discipline. 



174 

Immunity of Other Government Ships 

Article 33 

For all purposes connected with the exercise of powers on the 
high seas by States other than the flag State, ships owned or 
operated by a State and used only on government service, 
whether commercial or non-commercial, shall be assimilated to 
and shall have the same immunity as warships. 

Safety of Navigation 

Article 34 

1. Every State is required to issue for ships under its juris- 
diction regulations to ensure safety at sea with regard inter alia 
to: 

(a) The use of signals, the maintenance of communications 
and the prevention of collisions ; 

(b) The crew which must be adequate to the needs of the 
ship and enjoy reasonable labour conditions ; 

(c) The construction, equipment and seaworthiness of the 
ship. 

2. In issuing such regulations, each State is required to ob- 
serve internationally accepted standards. It shall take the neces- 
sary measures to secure observance of the regulations. 

Penal Jurisdiction in Matters of Collision 

Article 35 

1. In the event of a collision or of any other incident of navi- 
gation concerning a ship on the high seas involving the penal or 
disciplinary responsibility of the master or of any other person 
in the service of the ship, no penal or disciplinary proceedings may 
be instituted against such persons except before the judicial or 
administrative authorities either of the flag State or of the State 
of which the accused person is a national. 

2. No arrest or detention of the ship, even as a measure of 
investigation, shall be ordered by any authorities other than those 
of the flag State. 

Duty to Render Assistance 

Article 36 
Every State shall require the master of a ship sailing under its 



175 

flag, in so far as he can do so without serious danger to the ship, 
the crew or the passengers. 

(a) To render assistance to any person found at sea in danger 
of being lost ; 

(b) To proceed with all speed to the rescue of persons in 
distress if informed of their need of assistance, in so far as such 
action may reasonably be expected of him ; 

(c) After a collision, to render assistance to the other ship, 
her crew and her passengers and, where possible, to inform the 
other ship of the name of his own ship, her port of registry and 
the nearest port at which she will call. 

Slave Trade 
Article 37 

Every State shall adopt effective measures to prevent and 
punish the transport of slaves in ships authorized to fly its colours, 
and to prevent the unlawful use of its flag for that purpose. Any 
slave taking refuge on board any ship, whatever its colours, shall 
ipso facto be free. 

Piracy 

Article 38 

All States shall co-operate to the fullest possible extent in the 
repression of piracy on the high seas or in any other place outside 
the jurisdiction of any State. 

Article 39 

Piracy consists in any of the following acts : 

(1) Any illegal acts of violence, detention or any act of depreda- 
tion, committed for private ends by the crew or the passengers of 
a private ship or a private aircraft, and directed : 

(a) On the high seas, against another ship or against persons 
or property on board such a ship ; 

(b) Against a ship, persons or property in a place outside the 
jurisdiction of any State ; 

(2) Any act of voluntary participation in the operation of a 
ship or of an aircraft with knowledge of facts making it a pirate 
ship or aircraft ; 

(3) Any act of incitement or of intentional facilitation of an 
act described in sub-paragraph (1) or sub-paragraph (2) of this 
article. 



176 

Article 40 

The acts of piracy, as defined in article 39, committed by a 
government ship or a government aircraft whose crew has 
mutinied and taken control of the ship or aircraft are assimilated 
to acts committed by a private vessel. 

Article 41 

A ship or aircraft is considered a pirate ship or aircraft if it 
is intended by the persons in dominant control to be used for the 
purpose of committing one of the acts referred to in article 39. 
The same applies if the ship or aircraft has been used to commit 
any such act, so long as it remains under the control of the persons 
guilty of that act. 

Article 42 

A ship or aircraft may retain its national character although 
it has become a pirate ship or aircraft. The retention or loss of 
national character is determined by the law of the State from 
which the national character was originally derived. 

Article 43 

On the high seas, or in any other place outside the jurisdiction 
of any State, every State may seize a pirate ship or aircraft, or a 
ship taken by piracy and under the control of pirates, and arrest 
the persons and seize the property on board. The courts of the 
State which carried out the seizure may decide upon the penalties 
to be imposed, and may also determine the action to be taken with 
regard to the ships, aircraft or property, subject to the rights of 
third parties acting in good faith. 

Article 44 

Where the seizure of a ship or aircraft on suspicion of piracy 
has been effected without adequate grounds, the State making 
the seizure shall be liable to the State the nationality of which is 
possessed by the ship or aircraft, for any loss or damage caused by 
the seizure. 

Article 45 

A seizure on account of piracy may only be carried out by war- 
ships or military aircraft. 

Right of Visit 

Article 46 
l f Except where acts of interference derive from powers con- 



177 

ferred by treaty, a warship which encounters a foreign merchant 
ship on the high seas is not justified in boarding her unless there 
is reasonable ground for suspecting : 

(a) That the ship is engaged in piracy; or 

(b) That while in the maritime zones treated as suspect in 
the international conventions for the abolition of the slave trade, 
the ship is engaged in that trade ; or 

(c) That, though flying a foreign flag or refusing to show its 
flag, the ship is, in reality, of the same nationality as the warship. 

2. In the cases provided for in sub-paragraphs (a), (b) and (c) 
above, the warship may proceed to verify the ship's title to fly its 
flag. To this end, it may send a boat under the command of an 
officer to the suspected ship. If suspicion remains after the docu- 
ments have been checked, it may proceed to a further examination 
on board the ship, which must be carried out with all possible 
consideration. 

3. If the suspicions prove to be unfounded, and provided that the 
ship boarded has not committed any act justifying them, it shall 
be compensated for any loss or damage that may have been 
sustained. 

Right of Hot Pursuit 

Article 47 

1. The hot pursuit of a foreign ship may be undertaken when 
the competent authorities of the coastal State have good reason 
to believe that the ship has violated the laws and regulations of 
that State. Such pursuit must be commenced when the foreign ship 
is within the internal waters or the territorial sea of the pursuing 
State, and may only be continued outside the territorial sea if the 
pursuit has not been interrupted. It is not necessary that, at the 
time when the foreign ship within the territorial sea receives the 
order to stop, the ship giving the order should likewise be within 
the territorial sea. If the foreign ship is within a contiguous zone, 
as defined in article 66, the pursuit may only be undertaken if 
there has been a violation of the rights for the protection of 
which the zone was established. 

2. The right of hot pursuit ceases as soon as the ship pursued 
enters the territorial sea of its own country or of a third State. 

3. Hot pursuit is not deemed to have begun unless the pursuing 
ship has satisfied itself by bearings, sextant angles or other like 
means, that the ship pursued or one of its boats is within the 
limits of the territorial sea or, as the case may be, within the 
contiguous zone. The pursuit may only be commenced after a visual 



178 

or auditory signal to stop has been given at a distance which 
enables it to be seen or heard by the foreign ship. 

4. The right of hot pursuit may be exercised only by warships 
or military aircraft, or other ships or aircraft on government 
service specially authorized to that effect. 

5. Where hot pursuit is effected by an aircraft : 

(a) The provisions of paragraphs 1 to 3 of the present article 
shall apply mutatis mutandis; 

(b) The aircraft giving the order to stop must itself actively 
pursue the ship until a ship of the coastal State, summoned by the 
aircraft, arrives to take over the pursuit, unless the aircraft is 
itself able to arrest the ship. It does not suffice to justify an arrest 
on the high seas that the ship was merely sighted by the aircraft 
as an offender or suspected offender, if it was not both ordered 
to stop and pursued by the aircraft itself. 

6. The release of a ship arrested within the jurisdiction of a 
State and escorted to a port of that State for the purposes of an 
enquiry before the competent authorities, may not be claimed 
solely on the ground that the ship, in the course of its voyage, 
was escorted across a portion of the high seas, if the circumstances 
rendered this necessary. 

Pollution of the High Seas 

Article 48 

1. Every State shall draw up regulations to prevent pollution 
of the seas by the discharge of oil from ships or pipelines or 
resulting from the exploitation of the seabed and its subsoil, 
taking account of existing treaty provisions on the subject. 

2. Every State shall draw up regulations to prevent pollution 
of the seas from the dumping of radioactive waste. 

3. All States shall co-operate in drawing up regulations with a 
view to the prevention of pollution of the seas or air space above, 
resulting from experiments or activities with radioactive materials 
or other harmful agents. 

Sub-section B: Fishing 

Right to Fish 

Article 49 

All States have the right for their nationals to engage in fishing 
on the high seas, subject to their treaty obligations and to the 



179 

provisions contained in the following articles concerning con- 
servation of the living resources of the high seas. 

Conservation of the Living Resources of the High Seas 

Article 50 

As employed in the present articles, the expression "conserva- 
tion of the living resources of the high seas" means the aggregate 
of the measures rendering possible the optimum sustainable yield 
from those resources so as to secure a maximum supply of food 
and other marine products. 

Article 51 

A State whose nationals are engaged in fishing in any area of 
the high seas where the nationals of other States are not thus 
engaged shall adopt measures for regulating and controlling fish- 
ing activities in that area when necessary for the purpose of the 
conservation of the living resources of the high seas. 

Article 52 

1. If the nationals of two or more States are engaged in fishing 
the same stock or stocks of fish or other marine resources in any 
area of the high seas, these States shall, at the request of any of 
them, enter into negotiations with a view to prescribing by agree- 
ment the necessary measures for the conservation of such re- 
sources. 

2. If the States concerned do not reach agreement within a 
reasonable period of time, any of the parties may initiate the pro- 
cedure contemplated by article 57. 

Article 53 

1. If, subsequent to the adoption of the measures referred to in 
articles 51 and 52, nationals of other States engage in fishing the 
same stock or stocks of fish or other marine resources in the same 
area, the conservation measures adopted shall be applicable to 
them. 

2. If these other States do not accept the measures so adopted 
and if no agreement can be reached within a reasonable period of 
time, any of the interested parties may initiate the procedure con- 
templated by article 57. Subject to paragraph 2 of article 58, the 
measures adopted shall remain obligatory pending the arbitral 
decision. 

Article 54 
1. A coastal State has a special interest in the maintenance of 



180 

the productivity of the living resources in any area of the high 
seas adjacent to its territorial sea. 

2. A coastal State is entitled to take part on an equal footing 
in any system of research and regulation in that area, even though 
its nationals do not carry on fishing there. 

3. If the States concerned do net reach agreement within a rea- 
sonable period of time, any of the parties may initiate the pro- 
cedure contemplated by article 57. 

Article 55 

1. Having regard to the provisions of paragraph 1 of article 
54, any coastal State may, with a view to the maintenance of the 
productivity of the living resources of the sea, adopt unilateral 
measures of conservation appropriate to any stock of fish or other 
marine resources in any area of the high seas adjacent to its 
territorial sea, provided that negotiations to that effect with the 
other States concerned have not led to an agreement within a 
reasonable period of time. 

2. The measures which the coastal State adopts under the pre- 
vious paragraph shall be valid as to other States only if the 
following requirements are fulfilled : 

(a) That scientific evidence shows that there is an urgent 
need for measures of conservation ; 

(b) That the measures adopted are based on appropriate 
scientific findings ; 

(c) That such measures do not discriminate against foreign 
fishermen. 

3. If these measures are not accepted by the other States con- 
cerned, any of the parties may initiate the procedure contemplated 
by article 57. Subject to paragraph 2 of article 58, the measures 
adopted shall remain obligatory pending the arbitral decision. 

Article 56 

1. Any State which, even if its nationals are not engaged in 
fishing in an area of the high seas not adjacent to its coast, has 
a special interest in the conservation of the living resources in that 
area, may request the State whose nationals are engaged in fish- 
ing there to take the necessary measures of conservation. 

2. If no agreement is reached within a reasonable period, such 
State may initiate the procedure contemplated by article 57. 

Article 57 

1. Any disagreement arising between States under articles 52, 
53, 54, 55 and 56 shall, at the request of any of the parties, be 






181 

submitted for settlement to an arbitral commission of seven mem- 
bers, unless the parties agree to seek a solution by another method 
of peaceful settlement. 

2. Except as provided in paragraph 3, two members of the 
arbitral commission shall be named by the State or States on the 
one side of the dispute, and two members shall be named by the 
State or States contending to the contrary, but only one of the 
members nominated by each side may be a national of a State on 
that side. The remaining three members, one of who shall be 
designated as chairman, shall be named by agreement between the 
States in dispute. Failing agreement they shall, upon the request 
of any State party, be nominated by the Secretary-General of the 
United Nations after consultation with the President of the Inter- 
national Court of Justice and the Director-General of the United 
Nations Food and Agriculture Organization, from nationals of 
countries not parties to the dispute. If, within a period of three 
months from the date of the request for arbitration, there shall be 
a failure by those on either side in the dispute to name any mem- 
ber, such member or members shall, upon the request of any 
party, be named, after such consultation, by the Secretary-General 
of the United Nations. Any vacancy arising after the appointment 
shall be filled in the same manner as provided for the initial 
selection. 

3. If the parties to the dispute fall into more than two opposing 
groups, the arbitral commission shall, at the request of any of the 
parties, be appointed by the Secretary-General of the United 
Nations, after consultation with the President of the International 
Court of Justice and the Director-General of the United Nations 
Food and Agriculture Organization, from amongst well qualified 
persons specializing in legal, administrative or scientific questions 
relating to fisheries, depending upon the nature of the dispute to 
be settled. Any vacancy arising after the appointment shall be 
filled in the same manner as provided for the initial selection. 

4. Except as herein provided the arbitral commission shall de- 
termine its own procedure. It shall also determine how the costs 
and expenses shall be divided between the parties. 

5. The arbitral commission shall in all cases be constituted 
within three months from the date of the original request and 
shall render its decision within a further period of five months 
unless it decides, in case of necessity, to extend that time limit. 

Article 58 

1. The arbitral commission shall, in the case of measures 
unilaterally adopted by coastal States, apply the criteria listed in 



182 

paragraph 2 of article 55. In other cases it shall apply these 
criteria according to the circumstances of each case. 

2. The arbitral commission may decide that pending its award 
the measures in dispute shall not be applied. 

Article 59 

The decisions of the arbitral commission shall be binding on the 
States concerned. If the decision is accompanied by any recom^ 
mendations, they shall receive the greatest possible consideration. 

Fisheries Conducted by Means of Equipment Embedded 
in the Floor of the Sea 

Article 60 

The regulation of fisheries conducted by means of equipment 
embedded in the floor of the sea in areas of the high seas adjacent 
to the territorial sea of a State, may be undertaken by that State 
where such fisheries have long been maintained and conducted by 
its nationals, provided that non-nationals are permitted to par- 
ticipate in such activities on an equal footing with nationals. Such 
regulations will not, however, affect the general status of the areas 
as high seas. 

Sub-section C: Submarine Cables And Pipelines 

Article 61 

1. All States shall be entitled to lay telegraph, telephone or high- 
voltage power cables and pipelines on the bed of the high seas. 

2. Subject to its right to take reasonable measures for the 
exploration of the continental shelf and the exploitation of its 
natural resources, the coastal State may not impede the laying 
or maintenance of such cables or pipelines. 

Article 62 

Every State shall take the necessary legislative measures to 
provide that the breaking or injury of a submarine cable beneath 
the high seas done wilfully or through culpable negligence, in such 
a manner as to be liable to interrupt or obstruct telegraphic or 
telephonic communications, and similarly the breaking or injury 
of a submarine high-voltage power cable or pipeline, shall be a 
punishable offence. This provision shall not apply to any break or 
injury caused by persons who acted merely with the legitimate 
object of saving their lives or their ships, after having taken all 
necessary precautions to avoid such break or injury. 



183 

Article 63 

Every State shall take the necessary legislative measures to 
provide that, if persons subject to its jurisdiction who are the 
owners of a cable or pipeline beneath the high seas, in laying or 
repairing that cable or pipeline, cause a break in or injury to 
another cable or pipeline, they shall bear the cost. 

Article 64 

Every State shall regulate trawling so as to ensure that all the 
fishing gear used shall be so constructed and maintained as to 
reduce to the minimum any danger of fouling submarine cables 
or pipelines. 

Article 65 

Every State shall take the necessary legislative measures to 
ensure that the owners of ships who can prove that they have 
sacrificed an anchor, a net or any other fishing gear, in order to 
avoid injuring a submarine cable or pipeline shall be indemnified 
by the owner of the cable or pipeline, provided that the owner of 
the ship has taken all reasonable precautionary measures before- 
hand. 

Section II: Contiguous Zone 

Article 66 

1. In a zone of the high seas contiguous to its territorial sea, 
the coastal State may exercise the control necessary to 

(a) Prevent infringement of its customs, fiscal or sanitary 
regulations within its territory or territorial sea ; 

(b) Punish infringement of the above regulations committed 
within its territory or territorial sea. 

2. The contiguous zone may not extend beyond 12 miles from 
the baseline from which the breadth of the territorial sea is 
measured. 

Section III: Continental Shelf 

Article 67 

For the purposes of these articles, the term "continental shelf" 
is used as referring to the seabed and subsoil of the submarine 
areas adjacent to the coast but outside the area of the territorial 
sea, to a depth of 200 metres (approximately 100 fathoms) or, 
beyond that limit, to where the depth of the superjacent waters 
admits of the exploitation of the natural resources of the said 
areas. 



184 

Article 68 

The coastal State exercises over the continental shelf sovereign 
rights for the purpose of exploring and exploiting its natural 
resources. 

Article 69 

The rights of the coastal State over the continental shelf do not 
affect the legal status of the superjacent waters as high seas, or 
that of the airspace above those waters. 

Article 70 

Subject to its right to take reasonable measures for the ex- 
ploration of the continental shelf and the exploitation of its natural 
resources, the coastal State may not impede the laying or mainte- 
nance of submarine cables on the continental shelf. 

Article 71 

1. The exploration of the continental shelf and the exploitation 
of its natural resources must not result in any unjustifiable inter- 
ference with navigation, fishing or the conservation of the living 
resources of the sea. 

2. Subject to the provisions of paragraphs 1 and 5 of this article, 
the coastal State is entitled to construct and maintain on the con- 
tinental shelf installations necessary for the exploration and ex- 
ploitation of its natural resources, and to establish safety zones 
at a reasonable distance around such installations and take in those 
zones measures necessary for their protection. 

3. Such installations, though under the jurisdiction of the 
coastal State, do not possess the status of islands. They have no 
territorial sea of their own, and their presence does not affect 
the delimitation of the territorial sea of the coastal State. 

4. Due notice must be given of any such installations con- 
structed, and permanent means for giving warning of their 
presence must be maintained. 

5. Neither the installations themselves, nor the said safety zones 
around them may be established in narrow channels or where in- 
terference may be caused in recognized sea lanes essential to 
international navigation. 

Article 72 

1. Where the same continental shelf is adjacent to the territories 
of two or more States whose coasts are opposite to each other, the 
boundary of the continental shelf appertaining to such States shall 
be determined by agreement between them. In the absence of 



185 

agreement, and unless another boundary line is justified by special 
circumstances, the boundary is the median line, every point of 
which is equidistant from the baselines from which the breadth of 
the territorial sea of each country is measured. 

2. Where the same continental shelf is adjacent to the territories 
of two adjacent States, the boundary of the continental shelf shall 
be determined by agreement between them. In the absence of 
agreement, and unless another boundary line is justified by special 
circumstances, the boundary shall be determined by application of 
the principle of equidistance from the baselines from which the 
breadth of the territorial sea of each of the two countries is 
measured. 

Article 73 

Any disputes that may arise between States concerning the 
interpretation or application of articles 67-72 shall be submitted to 
the International Court of Justice at the request of any of the 
parties, unless they agree on another method of peaceful settle- 
ment. 

3. Selected Commentaries by the United Nations International 
Law Commission on the Articles concerning the Law of the Sea. 

Note. Published in the report containing Articles concerning the Law 
of the Sea (A/3159) are the International Law Commission's commentaries 
on each of the articles. These commentaries also appear in an earlier 
version in A/CN. 4/104 at pages 37-133. The commentaries listed below, taken 
from A/CN. 4/104, have been selected because of their particular bearing on 
the subject matter of this book. In addition, an excerpt from the introductory 
material contained therein is also reprinted. The footnotes have been renum- 
bered for use herein. 

a. Excerpt from Introduction — (c) Law of the Sea 

b. Commentary to Article 3 (Breadth of the territorial sea) 

c. Commentary to Article 4 (Normal base line) 

d. Commentary to Article 5 (Straight base line) 

e. Commentary to Article 7 (Bays) 

f. Commentary to Article 10 (Islands) 

g. Commentary to Article 15 (Meaning of the right of innocent passage) 
h. Commentary to Article 17 (Rights of protection of the, coastal state) 

i. Commentary to Article 24 (Passage) 

j. Commentary to Article 27 (Freedom of the high seas) 

k. Commentary to Article 49 (Right to fish) including note on Conserva- 
tion of the living resources of the high seas 

1. Commentary to Article 58 (Criteria for Fisheries Arbitral Commission) 

m. Commentary to Article 66 (Contiguous Zone) 

n. Introductory Note on the Continental Shelf 

o. Commentary to Article 71 (Rights and limitations concerning the 
Continental Shelf) 

p. Commentary to Article 73 (Settlement of disputes over Continental 
Shelf) 



186 

a. EXCERPT FROM INTRODUCTION TO REPORT— 

(c) LAW OF THE SEA 

22. In pursuance of General Assembly resolution 899 (IX) of 
14 December 1954, the Commission has grouped together sys- 
tematically all the rules it has adopted concerning the high seas, 
the territorial sea, the continental shelf, the contiguous zone and 
the conservation of the living resources of the sea. In consequence 
of this re-arrangement the Commission has had to make certain 
changes in the texts adopted. 

23. The final report on the subject is in two parts, the first 
dealing with the territorial sea and the second with the high seas. 
The second part is divided into three sections: (1) general regime 
of the high seas; (2) contiguous zone; (3) continental shelf. Each 
article is accompanied by a commentary. 

24. The Commission wishes to preface the text of the articles 
adopted by certain observations as to the way in which it considers 
that practical effect should be given to these rules. 

25. When the International Law Commission was set up, it 
was thought that the Commission's work might have two different 
aspects: on the one hand "the codification of international law" 
or, in the words of article 15 of the Commission's statute, "the 
more precise formulation and systematization of rules of inter- 
national law in fields where there already has been extensive State 
practice, precedent and doctrine" : and on the other hand, "the 
progressive development of international law" or "the preparation 
of draft conventions on subjects which have not yet been regulated 
by international law or in regard to which the law has not yet 
been sufficiently developed in the practice of States." 

26. In preparing its rules on the law of the sea, the Commission 
has become convinced that, in this domain at any rate, the distinc- 
tion established in the Statute between those two activities can 
with difficulty be maintained. Not only may there be wide differ- 
ences of opinion as to whether a subject is already "sufficiently 
developed in practice", but also several of the provisions adopted 
by the Commission, based on a "recognized principle of inter- 
national law", have been framed in such a way as to place them 
in the "progressive development" category. Although it tried at 
first to specify which articles fell into one and which into the 
other category, the Commission has had to abandon the attempt, 
as several do not wholly belong to either. 



187 

27. In these circumstances, in order to give effect to the project 
as a whole, it will be necessary to have recourse to conventional 
means. 

28. The Commission therefore recommends, in conformity with 
article 23, paragraph 1 (d) of its Statute, that the General As- 
sembly should summon an international conference of plenipo- 
tentiaries to examine the law of the sea, taking account not only 
of the legal but also of the technical, biological, economic and 
political aspects of the problem, and to embody the results of its 
work in one or more international conventions or such other 
instruments as it may deem appropriate. 

29. The Commission is of the opinion that the conference should 
deal with the various parts of the law of the sea covered by the 
present report. Judging from its own experience, the Commission 
considers — and the comments of governments have confirmed this 
view — that the various sections of the law of the sea hold together, 
and are so closely inter-dependent that it would be extremely 
difficult to deal with only one part and leave the others aside. 

30. The Commission considers that such a conference has been 
adequately prepared for by the work the Commission has done. 
The fact that there have been fairly substantial differences of 
opinion on certain points should not be regarded as a reason for 
putting off such a conference. There has been widespread regret 
that the attitude of governments after the Hague Codification Con- 
ference of 1930 in allowing the disagreement over the breadth of 
the territorial sea to dissuade them from any attempt at con- 
cluding a convention on the points on which agreement had been 
reached. The Commission expresses the hope that this mistake will 
not be repeated. 

31. In recommending confirmation of the proposed rules as in- 
dicated in paragraph 22, the Commission has not had to concern 
itself with the question of the relationship between the proposed 
rules and existing conventions. The answer to that question must 
be found in the general rules of international law and the pro- 
visions drawn up by the proposed international conference. 

32. The Commission also wishes to make two other observations, 
which apply to the whole draft: 

1. The draft regulates the law of the sea in time of peace only. 

2. The term "mile" means nautical mile (1,852 metres) 
reckoned at sixty to one degree of latitude. 

33. The text of the articles concerning the law of the sea, as 



188 

adopted by the Commission, 0) and the Commission's commentary 
to the articles are reproduced below. 



b. COMMENTARY TO ARTICLE 3 

(1) At its seventh session the Commission had adopted certain 
guiding principles concerning the limits of the territorial sea, but 
before drafting the final text of an article on this subject, it had 
wished to see the comments of governments. 

(2) First of all, the Commission had recognized that inter- 
national practice was not uniform as regards the traditional 
limitation of the territorial sea to three miles. In the opinion of 
the Commission, that was an incontrovertible fact. 

(3) Next the Commission had stated that international law 
did not justify an extension of the territorial sea beyond twelve 
miles. In its opinion, such an extension infringed the principle 
of the freedom of the seas, and was therefore contrary to inter- 
national law. 

(4) Finally the Commission had stated that it took no decision 
as to the breadth of the territorial sea up to the limit of twelve 
miles. Some members held that as the rule fixing the breadth at 
three miles had been widely applied in the past and was still main- 
tained by a number of important maritime States, it should, in 
the absence of any other rule of equal authority, be regarded as 
recognized by international law and binding on all States. That 
view was not supported by the majority of the Commission ; at its 
seventh session, however, the Commission did not succeed in reach- 



( 1 )Sir Gerald Fitzmaurice (United Kingdom) expressed his dissent from 
(1) the final paragraph of the commentary to article 3, in so far as it might 
suggest that the breadth of the territorial sea was not governed by any exist- 
ing rule of international law; (2) article 24, in so far as it made the right of 
innocent passage of warships subject to prior notification or authorization. He 
recorded an abstention on those parts of article 47 (right of hot pursuit) and 
the commentary thereto, that related to the question of hot pursuit from 
within a contiguous zone. 

Mr. Krylov (U.S.S.R.) was not able to vote for articles 3 (breadth of the 
territorial sea), 22 (government ships operated for commercial purposes), 
article 39 (piracy), 57 (compulsory arbitration) and 73 (compulsory juris- 
diction). Mr. Zourek (Czechoslavakia) , while having voted for the draft arti- 
cles relating to the law of the sea as a whole, does not accept, for reasons indi- 
cated during the discussions, articles 3 (breadth of the territorial sea) , and 22 
(government ships operated for commercial purposes). He also maintained his 
reservations regarding article 7 (bays). He remains opposed to articles 57, 59 
and 73 relating to compulsory arbitration; he maintains his reservations 
regarding the definition of piracy as defined in article 39 and does not accept 
the commentary relating to that article. 



189 

ing agreement on any other limit. The extension by a State of its 
territorial sea to a breadth of between three and twelve miles was 
not characterized by the Commission as a breach of international 
law. Such an extension would be valid for any other State which 
did not object to it, and a fortiori for any State which recognized 
it tacitly or by treaty, or was a party to a judicial or arbitral 
decision recognizing the extension. A claim to a territorial sea not 
exceeding twelve miles in breadth could be sustained erga omnes 
by any State, if based on historic rights. But, subject to such cases, 
the Commission by a small majority declined to question the right 
of other States not to recognize an extension of the territorial sea 
beyond the three-mile limit. 

(5) At its eighth session, the Commission resumed its study 
of this problem in the light of the comments by governments. 
Those comments showed a wide diversity of opinion, and the same 
diversity was noted within the Commission. Several proposals 
were made ; they are referred to below in the order in which they 
were put to the vote. Some members were of the opinion that it 
was for each coastal State, in the exercise of its sovereign powers, 
to fix the breadth of its territorial sea. They considered that in all 
cases where the delimitation of the territorial sea was justified 
by the real needs of the coastal State, the breadth of the territorial 
sea was in conformity with international law; this would cover 
the case of those States which had fixed the breadth at between 
three and twelve miles. Another opinion was that the Commission 
should recognize that international practice was not uniform as 
regards limitation of the territorial sea to three miles, but would 
not authorize an extension of the territorial sea beyond twelve 
miles. On the other hand every State would have the right to 
extend its jurisdiction up to twelve miles. A third opinion was 
that the Commission should recognize that every coastal State was 
entitled to a territorial sea of a breadth of at least three, but not 
exceeding twelve miles. If, within those limits, the breadth was 
not determined by long usage, it should not exceed what was neces- 
sary for satisfying the justifiable interests of the State, taking into 
account also the interests of the other States in maintaining the 
freedom of the high seas and the breadth generally applied 
in the region. In case of a dispute, the question should, at 
the request of either of the parties, be referred to the Inter- 
national Court of Justice. A fourth opinion was reflected in a 
proposal to state that the breadth of the territorial sea could be 
determined by the coastal State in accordance with its economic 
and strategic needs within the limits of three and twelve miles, 
subject to recognition by States maintaining a narrower belt. 



190 

According to a fifth opinion and proposal, the breadth of the 
territorial sea would be three miles, but a greater breadth should 
be recognized if based on customary law. Furthermore, any State 
might fix the breadth of its territorial sea at a higher figure than 
three miles, but such an extension could not be claimed against 
States which had not recognized it or had not adopted an equal 
or greater breadth. In no case could the breadth of the territorial 
sea exceed twelve miles. 

(6) None of these proposals managed to secure a majority in 
the Commission, which, while recognizing that it differs in form 
from the other articles, finally accepted, by a majority vote, the 
text included in these regulations as article 3. 

(7) The Commission noted that the right to fix the limit of the 
territorial sea at three miles was not disputed. It states that inter- 
national law does not permit that limit to be extended beyond 
twelve miles. As regards the right to fix the limit at between three 
and up to twelve miles, the Commission was obliged to note that 
international practice was far from uniform. Since several States 
have established a breadth of between three and up to twelve miles, 
while others are not prepared to recognize such extensions, the 
Commission was unable to take a decision on the subject, and 
expressed the opinion that the question should be decided by an 
international conference of plenipotentiaries. 

(8) It follows from the foregoing that the Commission came 
out clearly against claims to extend the territorial sea to a breadth 
which, in its view, jeopardizes the principle that has governed 
maritime law since Grotius, namely, the freedom of the high seas. 
On the other hand, the Commission did not succeed in fixing the 
limit between three and up to twelve miles. 

(9) The Commission considered the possibility of adopting a 
rule that all disputes concerning the breadth of the territorial 
sea should be submitted to the compulsory jurisdiction of the 
International Court of Justice. The majority of the Commission, 
however, were unwilling to ask the Court to undertake the settle- 
ment of disputes on a subject regarding which the international 
community had not yet succeeded in formulating a rule of law. 
It did not wish to delegate an essentially legislative function to a 
judicial organ which, moreover, cannot render decisions binding 
on States other than the parties. For those reasons it considered 
that the question should be referred to the proposed conference. 

c. COMMENTARY TO ARTICLE 4 

(1) The Commission was of the opinion that, according to the 
international law in force, the extent of the territorial sea is 



191 

measured either from the low-water line along the coast, or, in 
the circumstances envisaged in article 5, from straight baselines 
independent of the low-water mark. This is how the Commission 
interprets the judgment of the International Court of Justice 
rendered on 10 December 1951 in the Fisheries Case between the 
United Kingdom and Norway. 2 

(2) The traditional expression "low-water mark" may have 
different meanings ; there is no uniform standard by which States 
in practice determine this line. The Commission considers that 
it is permissible to adopt as the base line the low-water mark as 
indicated on large-scale charts officially recognized by the coastal 
State. The Commission is of the opinion that the omission of de- 
tailed provisions such as were prepared by the 1930 Codification 
Conference is hardly likely to induce governments to shift the low- 
water lines on their charts unreasonably. 

d. COMMENTARY TO ARTICLE 5 

(1) The International Court of Justice, in its decision regarding 
the Fisheries Case between the United Kingdom and Norway, con- 
sidered that where the coast is deeply indented or cut into, or 
where it is bordered on an insular formation such as the Skjaer- 
gaard in Norway, the baseline becomes independent of the low- 
water mark and can only be determined by means of a geometric 
construction. The Court said : 

"In such circumstances the line of the low-water mark 
can no longer be put forward as a rule requiring the coast 
line to be followed in all its sinuosities ; nor can one speak 
of exceptions when contemplating so rugged a coast in 
detail. Such a coast, viewed as a whole, calls for the ap- 
plication of a different method. Nor can one characterize 
as exceptions to the rule the very many derogations which 
would be necessitated by such a rugged coast. The rule 
would disappear under the exceptions. . . . 

"The principle that the belt of territorial waters must 
follow the general direction of the coast makes it posible 
to fix certain criteria valid for any delimitation of the 
territorial sea ; these criteria will be elucidated later. The 
Court will confine itself at this stage to noting that, in 
order to apply this principle, several States have deemed 
it necessary to follow the straight baselines method and 
that they have not encountered objections of principle 



2 International Court of Justice, Reports, 1951, p. 116. 



192 

by other States. This method consists of selecting ap- 
propriate points on the low-water mark and drawing 
straight lines between them. This has been done, not only 
in the case of well-defined bays, but also in cases of minor 
curvatures of the coast line where it was solely a ques- 
tion of giving a simpler form to the belt of territorial 
waters." 3 

(2) The Commission interpreted the Court's judgment, which 
was delivered on the point in question by a majority of 10 votes 
to 2, as expressing the law in force; it accordingly drafted the 
article on the basis of this judgment. It felt, however, that certain 
rules advocated by the group of experts who met at The Hague 
in 1953 (see introduction to chapter II, paragraph 17 above) might 
serve to round off the criteria adopted by the Court. Consequently, 
at its sixth session, it inserted the following supplementary rules 
in the second paragraph of the article: 

"As a general rule, the maximum permissible length 
for a straight baseline shall be ten miles. Such baselines 
may be drawn, when justified according to paragraph 1, 
between headlands of the coastline or between any such 
headland and an island less than five miles from the 
coast, or between such islands. Longer straight baselines 
may, however, be drawn provided that no point on such 
lines is more than five miles from the coast. Baselines 
shall not be drawn to and from drying rocks and shoals.'' 

Some governments raised objections to this second paragraph, 
arguing that the maximum length of ten miles for baselines and 
the maximum distance from the coast of five miles seemed 
arbitrary and, moreover, not in conformity with the Court's 
decision. Against this certain members of the Commission pointed 
out that the Commission had drafted these provisions for applica- 
tion "as a general rule" and that it would always be possible to 
depart from them if special circumstances justified doing so. In 
the opinion of those members, the criteria laid down by the Court 
were not sufficiently precise for general application. However, at 
its seventh session in 1955, after further study of the question the 
Commission decided, by a majority, that the second paragraph 
should be deleted so as not to make the provisions of the first 
paragraph too mechanical. Only the final sentence was kept and 
added to the first paragraph. 



3 Ibid., pp. 129 and 130. The first paragraph of the quotation is a new trans- 
lation by the Registry of the Court [Ed.] 



193 

(4) At this same session, the Commission made a number of 
changes designed to bring the text even more closely into line 
with the Court's judgment in the above-mentioned Fisheries Case. 
In particular it inserted in the first sentence the words : "or where 
this is justified by economic interests peculiar to a region, the 
reality and importance of which are clearly evidenced by a long 
usage." Some governments stated in their comments on the 1955 
text that they could not support the insertion of "economic inter- 
ests" in the first sentence of the article. In their opinion, this 
reference to economic interests was based on a misinterpretation 
of the Court's judgment. The interests taken into account in the 
judgment were considered solely in the light of the historical and 
geographical factors involved and should not constitute a justifica- 
tion in themselves. The application of the straight baseline system 
should be justified in principle on other grounds before purely 
local economic considerations could justify a particular way of 
drawing the lines. 

(5) Although this interpretation of the judgment was not sup- 
ported by all the members, the great majority of the Commission 
endorsed this view at the eighth session, and the article was 
recast in that sense. 

(6) The question arose whether in waters which become in- 
ternal waters when the straight baseline system is applied the 
right of passage should not be granted in the same way as in the 
territorial sea. Stated in such general terms, this argument was 
not approved by the majority of the Commission. The Commission 
was however prepared to recognize that if a State wished to make 
a fresh delimitation of its territorial sea according to the straight 
baseline principle, thus including in its internal waters parts of 
the high seas or of the territorial sea that had previously been 
waters through which international traffic passed, other nations 
could not be deprived of the right of passage in those waters. 
Paragraph 3 of the article is designed to safeguard that right. 

(7) Straight baselines may be drawn only between points 
situated on the territory of a single State. An agreement between 
two States under which such baselines were drawn along the coast 
and connecting points situated on the territories of different 
States, would not be enforceable against other States. 

(8) Straight baselines may be drawn to islands situated in the 
immediate vicinity of the coast, but not to drying rocks and drying 
shoals. Only rocks or shoals permanently above sea level may be 
used for this purpose. Otherwise the distance between the base- 
lines and the coast might be extended more than is required to 
fulfil the purpose for which the straight baseline method is applied, 



194 

and, in addition, it would not be possible at high tide to sight the 
points of departure of the baselines. 

e. COMMENTARY TO ARTICLE 7 

(1) The first paragraph, which is taken from the report of the 
committee of experts mentioned above, lays down the conditions 
that must be satisfied by an indentation or curve in order to be 
regarded as a bay. In adopting this provision, the Commission 
repaired the omission to which attention had already been drawn 
by The Hague Codification Conference of 1930 and which the 
International Court of Justice again points out in its judgment 
in the Fisheries Case. Such an explanation was necessary in order 
to prevent the system of straight baselines from being applied to 
coasts whose configuration does not justify it, on the pretext of 
applying the rules for bays. 

(2) If, as a result of the presence of islands, an indentation 
whose features as a "bay" have to be established has more than 
one mouth, the total length of the lines drawn across all the 
different mouths will be regarded as the width of the bay. Here, 
the Commission's intention was to indicate that the presence of 
islands at the mouth of an indentation tends to link it more closely 
to the mainland, and this consideration may justify some altera- 
tion in the ratio between the width and the penetration of the 
indentation. In such a case an indentation which, if it had no 
islands at its mouth, would not fulfill the necessary conditions, is 
to be recognized as a bay. Nevertheless, islands at the mouth of 
a bay cannot be considered as "closing" the bay if the ordinary 
sea route passes between them and the coast. 

(3) The Commission discussed at length the question of the 
conditions under which the waters of a bay can be regarded as 
internal waters. The majority considered that it was not sufficient 
to lay down that the waters must be closely linked to the land 
domain by reason of the depth of pentration of the bay into the 
mainland, or otherwise by its configuration, or by reason of the 
utility the bay might have from the point of view of the economic 
needs of the country. These criteria lack legal precision. 

(4) The majority of the Commission took the view that the 
maximum length of the closing line must be stated in figures and 
that a limitation based on geographical or other considerations, 
which would necessarily be vague, would not suffice. It considered, 
however, that the limit should be more than ten miles. Although 
not prepared to establish a direct relationship between the length 
of the closing line and the breadth of the territorial sea — such a 
relationship was formally denied by certain members of the Com- 



195 

mission — it felt bound to take some account of tendencies to ex- 
tend the breadth of the territorial sea by lengthening the closing 
line of bays. As an experiment the Commission suggested, at its 
seventh session, a distance of twenty-five miles ; thus, the length 
of the closing line would be slightly more than twice the per- 
missible maximum breadth of the territorial sea as laid down in 
paragraph 2 of article 3. Since, firstly, historic bays, some of which 
are wider than twenty-five miles, would not come under the article 
and since, secondly, the provision contained in paragraph 1 of the 
article concerning the characteristics of a bay was calculated to 
prevent abuse, it seemed not unlikely that some extension of the 
closing line would be more readily accepted than an extension 
of the breadth of the territorial sea in general. At the seventh 
session, the majority of the Commission rejected a proposal that 
the length of the closing line should be set at twice the breadth of 
the territorial sea, primarily because it considered such a de- 
limitation unacceptable to States that have adopted a breadth of 
three or four miles for their territorial sea. At its eighth session 
the Commission again examined this question in the light of 
replies from governments. The proposal to extend the closing line 
to twenty-five miles had found little support ; a number of govern- 
ments stated that, in their view, such an extension was excessive. 
By a majority, the Commission decided to reduce the twenty-five 
miles figure, proposed in 1955 to fifteen miles. While appreciating 
that a line of ten miles had been recognized by several govern- 
ments and established by international conventions, the Commis- 
sion took account of the fact that the origin of the ten-mile line 
dates back to a time when the breadth of the territorial sea was 
much more commonly fixed at three miles than it is now. In view 
of the tendency to increase the breadth of the territorial sea, the 
majority in the Commission thought that an extension of the 
closing line to fifteen miles would be justified and sufficient. 

(5) If the mouth of a bay is more than fifteen miles wide, the 
closing line will be drawn within the bay at the point nearest to 
the sea where the width does not exceed that distance. Where 
more than one line of fifteen miles in length can be drawn, the 
closing line will be so selected as to enclose the maximum water 
area within the bay. The Commission believes that other methods 
proposed for drawing this line give rise to uncertainties that will 
be avoided by adopting the above method, which is that proposed 
by the above-mentioned committee of experts. 

(6) Paragraph 4 states that the foregoing provisions shall not 
apply to "historic" bays. 

(7) The Commission felt bound to propose only rules applicable 



196 

to bays the coasts of which belong to a single State. As regards 
other bays, the Commission has not sufficient data at its disposal 
concerning the number of cases involved or the regulations at 
present applicable to them. 

f. COMMENTARY TO ARTICLE 10 

(1) This article applies both to islands situated in the high 
seas and to islands situated in the territorial sea. In the case of 
the latter, their own territorial sea will partly coincide with the 
territorial sea of the mainland. The presence of the island will 
create a bulge in the outer limit of the territorial sea of the main- 
land. The same idea can be expressed in the following form: 
islands, wholly or partly situated in the territorial sea, shall be 
taken into consideration in determining the outer limit of the 
territorial sea. 

(2) An island is understood to be any area of land surrounded 
by water which, except in abnormal circumstances, is permanently 
above the high-water mark. Consequently, the following are not 
considered islands and have no territorial sea : 

(i) Elevations which are above water at low tide only. Even 
if an installation is built on such an elevation and is itself per- 
manently above water — a lighthouse, for example — the elevation 
is not an "island" as understood in this article; 

(ii) Technical installations built on the sea-bed, such as 
installations used for the exploitation of the continental shelf (see 
article 71). The Commission nevertheless proposed that a safety 
zone around such installations should be recognized in view of 
their extreme vulnerability. It does not consider that a similar 
measure is required in the case of lighthouses. 

(3) The Commission had intended to follow up this article with 
a provision concerning groups of islands. Like The Hague Con- 
ference for the Codification of International Law of 1930, the 
Commission was unable to overcome the difficulties involved. The 
problem is singularly complicated by the different forms it takes 
in different archipelagos. The Commission was prevented from 
stating an opinion, not only by disagreement on the breadth of 
the territorial sea, but also by lack of technical information on 
the subject. It recognizes the importance of this question and 
hopes that if an international conference subsequently studies the 
proposed rules it will give attention to it. 

(4) The Commission points out, for purposes of information, 
that article 5 may be applicable to groups of islands lying off the 
coast. 



197 

g. COMMENTARY TO ARTICLE 15 

(1) This article lays down that ships of all States including 
fishing boats have the right of innocent passage through the 
territorial sea. It reiterates a principle recognized by international 
law and confirmed by the 1930 Codification Conference. 

(2) According to paragraph 2 the general rule recommended 
for ships passing through the territorial sea is equally applicable 
to ships proceeding to or from ports. In the latter cases, however, 
certain restrictions are necessary: these are mentioned in article 
20, paragraph 2 and article 21, paragraph 3. 

(3) For the right in question to be claimable, passage must in 
fact be innocent. It will not be innocent if the ship commits any of 
the acts referred to in paragraph 3. This paragraph follows the 
lines of that included in article 5 of the rules proposed by Sub- 
Committee II of the 1930 Codification Conference. The Commission 
considered that "fiscal interests of the State" — a term which, 
according to the 1930 comments, should be interpreted very 
broadly as including all matters relating to customs and to import, 
export and transit prohibitions — could be regarded as being in- 
cluded in the more general expression used in paragraph 3. The 
term covers inter alia questions relating to customs and health as 
well as the interests enumerated in the comment to article 18. 

(4) Paragraph 3 contains only general criteria and does not 
go into details. There was therefore no need to mention the case — 
to which attention has been specially drawn — of ships using the 
territorial sea for the express purpose of defeating import and 
export controls and contravening the customs regulations of the 
coastal State ("hovering ships") . The Commission considers, how- 
ever, that passage undertaken for this purpose cannot be regarded 
as innocent. 

(5) Under the 1955 draft, the provision in paragraph 5 was 
inserted only in the sub-section on warships. It has been trans- 
ferred to the general sub-section in order to make it equally ap- 
plicable to commercial submarines, if these ships are ever re- 
introduced. 

h. COMMENTARY TO ARTICLE 17 

(1) This article recognizes the right of the coastal State to 
verify the innocent character of the passage, if need should arise, 
and to take the necessary steps to protect itself against any act 
prejudicial to its security or to such other of its interests as it is 
authorized to protect under the present rules and other rules of 
international law. The Second Committee of the 1930 Codification 



198 

Conference used the expression "public order" in this context. 
The Commission prefers to avoid this expression, which is open 
to various interpretations. 

(2) In exceptional cases a temporary suspension of the right 
of passage is permissible if compelling reasons connected with 
general security require it. Although it is arguable that this power 
was in any case implied in paragraph 1 of the article, the Com- 
mission considered it desirable to mention it expressly in a third 
paragraph which specifies that only a temporary suspension in 
definite areas is permissible. The Commission is of the opinion that 
the article states the international law in force. 

(3) The Commission also included a clause formally prohibiting 
interference with passage through straits used for navigation 
between two parts of the high seas. The expression "straits used 
for international navigation between two parts of the high seas" 
was suggested by the decision of the International Court of Justice 
in the Corfu Channel Case. The Commission, however, was of the 
opinion that it would be in conformity with the Court's decision 
to insert the word "normally" before the word "used". 

(4) The question was asked what would be the legal position 
of straits forming part of the territorial sea of one or more States 
and constituting the sole means of access to a port of another State. 
The Commission considers that this case could be assimilated to 
that of a bay whose inner part and entrance from the high seas 
belong to different States. As the Commission felt bound to confine 
itself to proposing rules applicable to bays, wholly belonging to 
a single coastal State, it also reserved consideration of the above- 
mentioned case. 

i. COMMENTARY TO ARTICLE 24 

(1) At its sixth session in 1954, the Commission took the view 
that passage should be granted to warships without prior au- 
thorization or notification. At its seventh session in 1955, after 
noting the comments of certain governments and reviewing the 
question, the Commission felt obliged to amend this article so as 
to stress the right of the coastal State to make the right of passage 
of warships through the territorial sea subject to previous au- 
thorization or notification. Where previous authorization is re- 
quired, it should not normally be subject to conditions other than 
those laid down for merchant ships in articles 17 and 18. In certain 
parts of the territorial sea, or in certain special circumstances, the 
coastal State may, however, deem it necessary to limit the right 
of passage more strictly in the case of warships than in that of 



199 

merchant ships. The 1955 article provides a clearer recognition of 
this right than the 1954 text. 

(2) The Commission reconsidered this matter at its eighth 
session, in the light of the comments of certain governments, 
which pointed out that in practice passage was effected without 
formality and without objection on the part of coastal States. The 
majority of the Commission, however, saw no reason to change 
its view. While it is true that a larger number of States do not 
require previous authorization or notification, the Commission can 
only welcome this attitude, which displays a laudable respect for 
the principle of freedom of communications, but this does not 
mean that a State would not be entitled to require such notification 
or authorization if it deemed it necessary to take this precautionary 
measure. Since it admits that the passage of warships through 
the territorial sea of another State can be considered by that 
State as a threat to its security, and is aware that a number of 
States do require previous notification or authorization, the Com- 
mission is not in a position to dispute the right of States to take 
such a measure. But so long as a State has not enacted — and duly 
published — a restriction upon the right of passage of foreign war- 
ships through its territorial sea, such ships may pass through those 
waters without previous notification or authorization provided that 
they do not lie in them or put in at a port. In these latter cases 
previous authorization — except in cases of putting in through 
stress of weather — is always required. The Commission did not 
consider it necessary to insert an express stipulation to this effect 
since article 15, paragraph 4, applies equally to warships. 

(3) The right of the coastal State to restrict passage is more 
limited in the case of passage through straits. The International 
Court of Justice in its judgment of 9 April 1949 in the Corfu 
Channel Case says : 

"It is, in the opinion of the Court, generally recog- 
nized and in accordance with international custom that 
States in time of peace have a right to send their warships 
through straits used for international navigation between 
two parts of the high seas without the previous au- 
thorization of a coastal State, provided that the passage 
is innocent. Unless otherwise prescribed in an inter- 
national convention, there is no right for a coastal State 
to prohibit such passage through straits in time of 
peace." 4 



4 I.C.J., Reports, 1949, p. 28. 



200 

(4) The Commission relied on that judgment of the Court when 
inserting in the 1955 draft, a second paragraph worded as follows : 

"It may not interfere in any way with innocent passage 
through straits normally used for international naviga- 
tion between two parts of the high seas." 

It was pointed out at the eighth session that this second para- 
graph was unnecessary, as paragraph 4 of article 17, which forms 
part of sub-section A entitled "General Rules", was applicable to 
warships. The majority of the Commission supported the view 
that the second paragraph of the article included in 1955 was not 
strictly necessary. In deleting this paragraph the Commission, in 
order to avoid any misunderstanding on the subject, nevertheless 
wishes to state that article 24, in conjunction with paragraph 4 of 
article 17, must be interpreted to mean that the coastal State may 
not interfere in any way with the innocent passage of warships 
through straits normally used for international navigation be- 
tween two parts of the high seas ; hence the coastal State may not 
make the passage of warships through such straits subject to any 
previous authorization or notification. 

(5) The article does not affect the rights of States under a 
convention governing passage through the straits to which it 
refers. 

j. COMMENTARY TO ARTICLE 27 

(1) The principle generally accepted in international law that 
the high seas are open to all nations governs the whole regulation 
of the subject. No State may subject any part of the high seas 
to its sovereignty; hence no State may exercise jurisdiction over 
any such stretch of water. States are bound to refrain from any 
acts which might adversely affect the use of the high seas by 
nationals of other States. Freedom to fly over the high seas is 
expressly mentioned in this article because the Commission con- 
siders that it follows directly from the principle of the freedom 
of the sea ; the Commission has, however, refrained from formulat- 
ing rules on air navigation, since the task it set itself in the 
present phase of its work is confined to the codification and 
development of the law of the sea. 

(2) The list of freedoms of the high seas contained in this 
article is not restrictive. The Commission has merely specified 
four of the main freedoms, but it is aware that there are other 
freedoms, such as freedom to undertake scientific research on the 
high seas — a freedom limited only by the general principle stated 
in the third sentence of the first paragraph of the commentary to 



201 

the present article. The Commission has not made specific mention 
of the freedom to explore or exploit the subsoil of the high seas. 
It considered that apart from the case of the exploitation or ex- 
ploration of the soil or subsoil of a continental shelf — a case dealt 
with separately in Section III below — such exploitation had not 
yet assumed sufficient practical importance to justify special 
regulation. 

(3) Nor did the Commission make any express pronouncement 
on the freedom to undertake nuclear weapon tests on the high seas. 
In this connexion the general principle enunciated in the third 
sentence of this comment is applicable. In addition, the Commis- 
sion draws attention to article 48, paragraphs 2 and 3, of these 
articles. The Commission did not however wish to prejudge the 
findings of the Scientific Committee set up under General Assembly 
Resolution 913 (X) of 3 December 1955 to study the effects of 
atomic radiation. 

(4) The term "submarine cables" applies not only to telegraph 
and telephone cables, but also to high-voltage power cables. 

(5) Any freedom that is to be exercised in the interests of all 
entitled to enjoy it, must be regulated. Hence, the law of the high 
seas contains certain rules, most of them already recognized in 
positive international law, which are designed, not to limit or 
restrict the freedom of the high seas, but to safeguard its exercise 
in the interests of the entire international community. These rules 
concern particularly: 

(1) The right of States to exercise their sovereignty on board 
ships flying their flag ; 

(2) The exercise of certain policing rights; 

(3) The rights of States relative to the conservation of the 
living resources of the high seas ; 

(4) The institution by coastal States of a zone contiguous to 
their shores for the purpose of exercising certain well- 
defined rights; 

(5) The rights of coastal States with regard to the con- 
tinental shelf. 

(6) These matters form the subject of the present articles. 

k. COMMENTARY TO ARTICLE 49 

(1) This article confirms the principle of the right to fish on the 
high seas. The Commission admitted no exceptions to that prin- 
ciple in the parts of the high seas covering the continental shelf, 
save as regards sedentary fisheries and fisheries carried on by 
means of equipment embedded in the sea floor (see article 60). 



202 

Nor did it recognize the right to establish a zone contiguous to the 
coasts where fishing could be exclusively reserved to the nationals 
of the coastal State. The principle of the freedom of the seas does 
not, however, preclude regulations governing the conservation of 
the living resources of the high seas, as recommended by the 
Commission in articles 50-59. States may still conclude conventions 
for the regulation of fishing but the treaty obligations arising out 
of such conventions are, of course, binding only on the signatory 
States. 

(2) In articles 49, 51, 52, 53, 54 and 56 the term "nationals" 
denotes fishing boats having the nationality of the State concerned, 
irrespective of the nationality of the members of their crews. 

Conservation of the Living Resources of the High Seas 

(1) At its third session, in 1951, the Commission provisionally 
adopted, under the title of "Resources of the Sea", articles relating 
to the conservation of the living resources of the sea. This ques- 
tion was discussed in conjunction with the continental shelf, be- 
cause certain claims to sovereignty over the waters covering the 
continental shelf arise, at lease in part, out of the coastal State's 
desire to give effective protection to the living resources of the 
sea adjacent to its shores. 

(2) At its fifth session, in 1953, the Commission reviewed the 
articles adopted in 1951 in the light of the comments made by 
certain governments, and thereafter adopted a set of draft articles 
reproduced in its report on the work of its fifth session. 5 

(3) In adopting these articles, the Commission adhered to the 
provisional draft of the articles formulated in 1951. It recognized 
that the existing law on the subject provided no adequate pro- 
tection of marine fauna against waste or extermination. The 
above-mentioned report states that the resulting position con- 
stitutes, in the first instance, a danger to the food supply of the 
world. Also, in so far as it renders the coastal State or the States 
directly interested helpless against wasteful and predatory ex- 
ploitation of fisheries by foreign nationals, it constitutes an 
inducement to the State or States in question to resort to unilateral 
measures of self -protection, which are sometimes at variance with 
the law as it stands at present, because they result in the total 
exclusion of foreign nationals. 

(4) The articles adopted by the Commission in 1953 were in- 
tended to provide the basis for a solution of the difficulties inherent 



5 Official Records of the General Assembly, Eighth Session, Supplement No. 
9, (A/2456), paragraph 94. 



203 

in the existing situation. If the nationals of one State only were 
engaged in fishing in the areas in question, that State could fully 
achieve the desired object by adopting appropriate legislation and 
enforcing its observance. If nationals of several States were en- 
gaged in fishing in a given area, the concurrence of those States 
was essential ; article 1 of the Commission's draft provided there- 
fore that the States concerned would prescribe the necessary 
measures by agreement. Article 3 of the draft was intended to 
provide effectively for the contingency of the interested States 
being unable to reach agreement. It provided that States would 
be under a duty to accept as binding any system of regulation of 
fisheries in any area of the high seas which an international au- 
thority, to be created within the framework of the United Nations, 
prescribed as being essential for the purpose of protecting the fish- 
ing resources of that area against waste or extermination. 

(5) The General Assembly, at its ninth session (resolution 900 
(IX) of 14 December 1954), recognized the great importance of 
the question of the conservation of the living resources of the sea 
in connexion with the work of the International Law Commission 
on the regime of the high seas. It decided to convene an inter- 
national technical conference at the headquarters of the United 
Nations Food and Agriculture Organization in Rome on 18 April 
1955 to study the technical and scientific aspects of the problem 
of the international conservation of the living resources of the sea. 
The report of the Conference was to be referred to the Interna- 
tional Law Commission "as a further technical contribution to be 
taken into account in its study of the questions to be dealt with 
in the final report which it is to prepare pursuant to resolution 
899 (IX) of 14 December 1954". 

(6) At its seventh session, in 1955, the International Law Com- 
mission took note of the report of the Conference 6 with great 
interest. Mr. Garcia Amador, then Vice-Chairman of the Commis- 
sion, who had represented the Cuban Government and acted as 
Deputy Chairman at the Rome Conference, submitted to the 
Commission a series of draft articles, prefaced by a preamble, to 
replace the articles approved by the Commission in 1953. 

(7) The Commission made a careful study of these draft articles 
and found them generally acceptable, although it introduced cer- 
tain amendments. 

(Paragraph 8 omitted — See A/2934, pages 13-14.) 



6 See Report of the International Technical Conference on the Conservation 
of the Living Resources of the Sea, Rome, 18 April — 10 May 1955. (A/Conf 
10/6). 



204 

(9) The articles are also included as articles 25-33 in the draft 
text on the regime of the high seas adopted by the Commission 
at that session. Articles 25, 26 and 27 broadly reproduce the prin- 
ciples laid down in the first two articles of the 1953 text. The idea 
of an international body with legislative powers was dropped and 
replaced by that of compulsory arbitration in case of dispute. 
(Article 31). 

(10) From the beginning of its work, the Commission has con- 
sidered the question whether the position of coastal States as 
regards measures for the conservation of the living resources in 
parts of the high seas adjacent to their coasts did not call for 
some form of recognition by other States. A proposal was sub- 
mitted in 1951 to the effect that a coastal State should be 
empowered to lay down conservatory regulations to be applied 
in such zones, provided any disputes arising out of the application 
of the regulations were submitted to arbitration. Votes being 
equally divided on this proposal, the Committee decided to mention 
it in its report without sponsoring it. The Commission did not 
include such a provision in its 1953 draft. 

(11) At the 1955 Rome Conference, the tendency to make 
coastal States responsible for controlling zones adjacent to their 
coasts and applying in them measures of conservation consistent 
with the general technical principles adopted by the Conference, 
was again in evidence, and the same idea underlay the proposal 
submitted to the Commission by Mr. Garcia- Amador at the seventh 
session. The granting of special rights to coastal States on the 
ground of their special interest in the maintenance of the 
productivity of the living resources in any area of the high seas 
adjacent to their coasts was linked in that proposal with the 
obligation to resort to arbitration if the exercise of those rights 
gave rise to objection by other interested States. 

(12) At its seventh session, the Commission adopted two 
articles, — 28 and 29 — designed to protect the special interests of 
coastal States. The first of these articles stated that a coastal State 
having a special interest in the maintenance of the productivity 
of the living resources in any area of the high seas contiguous to 
its coasts is entitled to take part on an equal footing in any system 
of research and regulation in that area, even though its nationals 
do not carry on fishing there. The second article stipulated that 
a coastal State having a special interest in the maintenance of the 
productivity of the living resources in any area of the high seas 
adjacent to its coasts may adopt unilaterally whatever measures 
of conservation are appropriate in the area where this interest 
exists, provided that negotiations with the other States concerned 



205 

have not led to an agreement within a reasonable period of time 
and also subject to the provisions of paragraph 2 of article 29. 
The two articles provided for compulsory arbitration in the event 
of differences of opinion between the States concerned. 

(13) These two articles in particular gave rise to further 
discussion in the Commission at its eighth session. 

(14) Some members were of the opinion that these articles 
did not adequately protect the interests of coastal States. They 
argued that the coastal State, by the mere fact of being coastal, 
possesses a special interest in maintaining the productivity of the 
living resources in a part of the area adjacent to its coasts. In 
their view, this opinion, which was in any case already contained 
in the preamble to the articles in the annex to chapter II of the 
report on the work of the seventh session, should be clearly 
expressed in the draft. This opinion was shared by the majority 
of the Commission, and articles 28 and 29 were recast. The 
"special" character of the interest of the coastal State should be 
interpreted in the sense that the interest exists by reason of the 
sole fact of the geographical situation. However, the Commission 
did not wish to imply that the "special" interest of the coastal 
State would take precedence per se over the interests of the other 
States concerned. 

(15) Unlike the 1953 draft, the articles in question contain no 
express limitation of the breadth of the zone where the coastal 
State may claim its rights. The fact that the coastal Stated right 
is based on its special interest in maintaining the living resources, 
implies that any extension of this zone beyond the limits within 
which such an interest may be supposed to exist would exceed the 
purpose of the provision. 

(16) At its earlier sessions the Commission had used the 
expression "area of the high seas contiguous to its coasts", and 
the same term was used by the Rome Conference. At its eighth 
session the Commission, wishing to avoid any confusion with the 
"contiguous zone" provided for under article 66 of the present 
articles, replaced the term "contiguous" in the articles concerning 
the protection of the living resources of the sea, by "adjacent". 
This modification does not imply any change in the meaning of 
the rules adopted. 

(17) The insertion of a compulsory arbitration clause was 
opposed by some members of the Commission at both the seventh 
and eighth sessions. They expressed the opinion that the Com- 
mission, whose task was the codification of law, should not concern 
itself with safeguards for the application of the rules. In any 
case, it would be impossible to do so at the present stage, and the 



206 

study of the question would have to be deferred to later sessions. 
Other members were of opinion that it would be sufficient, as 
regards disputes arising- from the interpretation and application 
of the articles concerned, to refer to existing provisions imposing 
on States an obligation to seek a settlement by negotiation, 
inquiry, mediation, conciliation, arbitration, judicial settlement, 
reference to regional bodies, or other peaceful means, and they 
made a proposal to insert a provision on this subject in the draft. 

(18) The majority of the Commission did not share this view. 
Without claiming that all rules prepared by the Commission should 
be accompanied by compulsory jurisdiction or arbitration clauses, 
it felt that in proposing for States rights over the high seas going 
beyond existing international law, the Commission could not rely 
upon the due functioning of the general rules for the peaceful 
settlement of disputes, but would have to create effective safe- 
guards for the settlement of disputes by an impartial authority. 
Hence the majority of the Commission did not wish merely to 
grant States the rights in question and leave the matter of the 
settlement of disputes open for future consideration. While recog- 
nizing that the settlement of disputes must be sought by the 
means indicated in the general rule proposed by certain members, 
it felt that in this matter it would not be enough to have a general 
clause of that kind which did not guarantee that, if necessary, 
disputes would in fact be submitted to an impartial authority for 
decision. For this reason, the majority of the Commission accepted 
the idea of compulsory arbitration, the procedure for which is 
laid down in article 57. 

(19) The 1953 proposal to establish a central authority with 
legislative powers was not adopted ; on the other hand, considera- 
tion was given to the possibility of setting up a permanent inter- 
national body within the framework of the United Nations, with 
the status of a specialized agency, to be responsible not only for 
making technical and scientific studies of problems concerning the 
protection and use of living resources of the sea, but also for 
settling disputes between States on this subject. The Commission 
is of the opinion that the establishment of an international study 
commission is worthy of close attention. It considers, however, 
that in view of the diversity of the interests which may be 
involved in such disputes, the idea of ad hoc arbitral commissions 
would have more chance of being carried into practice in the near 
future than that of a central judicial authority. 

(20) Before concluding these introductory remarks the Com- 
mission wishes to reiterate its opinion that the proposed measures 
will fail in an important part of their purpose if they do not help 



207 

to smooth out the difficulties arising out of exaggerated claims in 
regard to the extension of the territorial sea or other claims to 
jurisdiction over areas of the high seas, and thus safeguard the 
principle of the freedom of the seas. 

I. COMMENTARY TO ARTICLE 58 

(1) Paragraph 1 mentions the criteria on which the arbitral 
commission's decision should be based. In the case of article 55, 
the criteria are of course those listed in that article. But these 
criteria do not wholly apply in the other cases. It seems desirable 
to give the arbitral commission some discretion in regard to the 
criteria to be applied in these cases. Subject to this remark, the 
Commission wishes to formulate the following guiding principles : 
(i) Common to all the determinations are the requirements: 

(a) That scientific findings shall demonstrate the necessity 
of conservation measures to make possible the optimum sustain- 
able productivity of the stock or stocks of fish ; 

(b) That the measures do not discriminate against foreign 
fishermen. 

(ii) Common to articles 52, 53, 54 and 55 is the requirement : 
That the specific measures shall be based on scientific findings 
and appropriate for the purpose. In determining appropriateness, 
the elements of effectiveness and practicability are to be considered 
as well as the relation between the expected benefits, in terms of 
maintained and increased productivity, and the cost of application 
and enforcement of the proposed measures. 

(iii) In the case of article 56, the State requesting the fishing 
State to take necessary measures of conservation would be a 
non-adjacent and non-fishing State. Such a State would be con- 
cerned only with the continued productivity of the resources. 
Therefore, the matter to be determined would be the adequacy 
of the overall conservation programme. 

(iv) Article 55 contains a criterion which is not included 
in the other articles: that of the urgency of action. Recourse to 
unilateral regulation by the coastal State prior to arbitration of 
the dispute can only be regarded as justified when the delay caused 
by arbitration would seriously threaten the continued productivity 
of the resources. 

m. COMMENTARY TO ARTICLE 66 

(1) International law accords States the right to exercise pre- 
ventive or protective control for certain purposes over a belt of 
the high seas contiguous to their territorial sea. It is, of course, 
understood that this power of control does not change the legal 



208 

status of the waters over which it is exercised. These waters are 
and remain a part of the high seas and are not subject to the 
sovereignty of the coastal State, which can exercise over them 
only such rights as are conferred on it by the present rules or are 
derived from international treaties. 

(2) Many States have adopted the principle that in the con- 
tiguous zone the coastal State may exercise customs control in 
order to prevent attempted infringements of its customs and 
police regulations within its territory or territorial sea, and to 
punish infringements of those regulations committed within its 
territory or territorial sea. The Commission considered that it 
would be impossible to deny to States the exercise of such rights. 

(3) Although the number of States which claim rights over the 
contiguous zone for the purpose of applying sanitary regulations 
is fairly small, the Commission considers that, in view of the 
connexion between customs and sanitary regulations, such rights 
should also be recognized for sanitary regulations. 

(4) The Commission did not recognize special security rights 
in the contiguous zone. It considered that the extreme vagueness 
of the term "security" would open the way for abuses and that 
the granting of such rights was not necessary. The enforcement 
of customs and sanitary regulations will be sufficient in most cases 
to safeguard the security of the State. In so far as measures of 
self-defence against an imminent and direct threat to the security 
of the State are concerned, the Commission refers to the general 
principles of international law and the Charter of the United 
Nations. 

(5) Nor was the Commission willing to recognize any exclusive 
right of the coastal State to engage in fishing in the contiguous 
zone. The Preparatory Committee of the Hague Codification Con- 
ference found, in 1930, that the replies from governments offered 
no prospect of an agreement to extend the exclusive fishing rights 
of the coastal State beyond the territorial sea. The Commission 
considered that in that respect the position has not changed. 

(6) The Commission examined the question whether the same 
attitude should be adopted with regard to proposals to grant the 
coastal State the right to take whatever measures it considered 
necessary for the conservation of the living resources of the sea 
in the contiguous zone. The majority of the Commission were 
unwilling to accept such a claim. They argued, first, that measures 
of this kind applying only to the relatively small area of the 
contiguous zone would be of little practical value and, secondly, 
that having provided for the regulation of the conservation of 
living resources in a special part of the present draft, it would 



209 

be inadvisable to open the way for a duplication of these rules by- 
different provisions designed to regulate the same matters in the 
contiguous zone only. Since the contiguous zone is a part of the 
high seas, the rules concerning conservation of the living resources 
of the sea apply to it. 

(7) The Commission did not maintain its decision of the 
previous year to grant the coastal State, within the contiguous 
zone, a right of control in respect of immigration. In its report 
on the work of its fifth session the Commission commented on this 
provision as follows: 

"It is understood that the term 'customs regulations' 
as used in the article refers not only to regulations con- 
cerning import and export duties but also to other regula- 
tions concerning the exportation and importation of 
goods. In addition, the Commission thought it necessary 
to amplify the formulation previously adopted by re- 
ferring expressly to immigration, a term which is also 
intended to include emigration. " 

Reconsidering this decision, the majority of the Commission 
took the view that the interests of the coastal State do not 
require an extension of the right of control to immigration and 
emigration. It considered that such control could and should be 
exercised in the territory of the coastal State and that there 
was no need to grant it special rights for this purpose in the 
contiguous zone. 

(8) The Commission considered the case of areas of the sea 
situated off the junction of two or more adjacent States, where 
the exercise of rights in the contiguous zone by one State would 
not leave any free access to the ports of another State except 
through that zone. The Commission, recognizing that in such 
cases the exercise of rights in the contiguous zone by one State 
may unjustifiably obstruct traffic to or from a port of another 
State, considered that in the case referred to it would be necessary 
for the two States to conclude a prior agreement on the exercise 
of rights in the contiguous zone. In view of the exceptional nature 
of the case, however, the Commission did not consider it necessary 
to include a formal rule to this effect. 

(9) The Commission considers that the breadth of the con- 
tiguous zone cannot exceed twelve nautical miles from the coast, 
the figure adopted by the Preparatory Committee of the Hague 
Codification Conference (1930). Until such time as there is 
unanimity in regard to the breadth of the territorial sea, the zone 
should be measured from the coast and not from the outer limit 



210 

of the territorial sea. States which have claimed extensive ter- 
ritorial waters have in fact less need of a contiguous zone than 
those which have been more modest in their delimitation. 

(10) The Commission thought it advisable to clarify the ex- 
pression "from the coast'' by stating that the zone is measured 
from the base-line from which the breadth of the territorial sea 
is measured. 

(11) The exercise by the coastal State of the rights enunciated 
in this article does not affect the legal status of the air space 
above the contiguous zone. The question whether the establishment 
of such an air control zone could be contemplated is outside the 
scope of these rules of the law of the sea. 

n. INTRODUCTORY NOTE TO SECTION III: THE CONTINENTAL SHELF 

(1) At its third session, held in 1951, the Commission adopted 
draft articles on the continental shelf with accompanying com- 
ments. After the third session, the special rapporteur re-examined 
these articles in the light of comments received from the govern- 
ments of 18 countries. The comments of these governments are 
reproduced in Annex II to the report on the fifth session. 7 In 
March 1953, the special rapporteur submitted a further report on 
the subject (A/CN.4/60) which was examined by the Commission 
at its fifth session. The Commission adopted draft articles, which 
it re-examined at its eighth session, in the context of the other 
sections of the rules of the law of the sea. This examination did 
not give rise to any major changes, except with regard to the 
delimitation of the continental shelf (see article 67). 

(2) The Commission accepted the idea that the coastal State 
may exercise control and jurisdiction over the continental shelf, 
with the proviso that such control and jurisdiction shall be 
exercised solely for the purpose of exploiting its resources; and 
it rejected any claim to sovereignty or jurisdiction over the super- 
jacent waters. 

(3) In some circles it is thought that the exploitation of the 
natural resources of submarine areas should be entrusted, not to 
coastal States, but to agencies of the international community 
generally. In present circumstances, however, such internation- 
alization would meet with insurmountable practical difficulties, 
and would not ensure the effective exploitation of natural resources 
necessary to meet the needs of mankind. 

(4) The Commission is aware that exploration and exploitation 



7 Official records of the General Assembly, Eighth session, Supplement No. 9 
(A/2456). 



211 

of the seabed and subsoil, which involves the exercise of control 
and jurisdiction by the coastal State, may affect the freedom of 
the seas, particularly in respect of navigation, Nevertheless, this 
cannot be a sufficient reason for obstructing a development which, 
in the opinion of the Commission, can be to the benefit of all 
mankind. The necessary steps must be taken to ensure that this 
development affects the freedom of the seas no more than is 
absolutely unavoidable, since that freedom is of paramount im- 
portance to the international community. The Commission thought 
it possible to combine the needs of the exploitation of the seabed 
and subsoil with the requirement that the sea itself must remain 
open to all nations for navigation and fishing. With these con- 
siderations in mind, the Commission drafted the following articles. 

o. COMMENTARY TO ARTICLE 71 

(1) While article 69 lays down in general terms the basic 
principle of the unaltered legal status of the superjacent sea and 
the air above it, article 71 applies that basic principle to the main 
manifestations of the freedom of the seas, namely, freedom of 
navigation and of fishing. Paragraph 1 of this article lays down 
that the exploration of the continental shelf must not result in 
any unjustifiable interference with navigation, fishing or the 
conservation of the living resources of the sea. It will be noted, 
however, that what the article prohibits is not any kind of 
interference, but only unjustifiable interference. The manner and 
the significance of that qualification were the subject of prolonged 
discussion in the Commission. The progressive development of 
international law, which takes place against the background of 
established rules, must often result in the modification of those 
rules by reference to new interests or needs. The extent of that 
modification must be determined by the relative importance of the 
needs and interests involved. To lay down, therefore, that the 
exploration and exploitation of the continental shelf must never 
result in any interference whatsoever with navigation and fishing 
might result in many cases in rendering somewhat nominal both 
the sovereign rights of exploration and exploitation and the very 
purpose of the articles as adopted. The case is clearly one of 
assessment of the relative importance of the interests involved. 
Interference, even if substantial, with navigation and fishing 
might, in some cases, be justified. On the other hand, interference 
even on an insignificant scale would be unjustified if unrelated to 
reasonably conceived requirements of exploration and exploitation 
of the continental shelf. While, in the first instance, the coastal 
State must be the judge of the reasonableness — or the justification 



212 

— of the measures adopted, in case of dispute the matter must be 
settled on the basis of article 73, which governs the settlement 
of all disputes regarding the interpretation or application of the 
articles. 

(2) With regard to the conservation of the living resources of 
the sea, everything possible should be done to prevent damage by- 
exploitation of the subsoil, seismic exploration in connexion with 
oil prospecting, and leaks from pipelines. 

(3) Paragraphs 2 to 5 relate to the installations necessary for 
the exploration and exploitation of the continental shelf, as well 
as to safety zones around such installations and the measures 
necessary to protect them. These provisions, too, are subject to 
the overriding prohibition of unjustified interference. Although 
the Commission did not consider it essential to specify the size of 
the safety zones, it believes that generally speaking a maximum 
radius of 500 metres is sufficient for the purpose. 

(4) Interested parties, i.e. not only government but also groups 
interested in navigation and fishing, should be duly notified of the 
construction of installations, so that these may be marked on 
charts. In any case, the installations should be equipped with 
warning devices (lights, audible signals, radar, buoys, etc.). 

(5) There is, in principle, no duty to disclose in advance plans 
relating to contemplated construction of installations. However, 
in cases where the actual construction of provisional installations 
is likely to interfere with navigation, due means of warning must 
be maintained, in the same way as in the case of installations 
already completed, and as far as possible due notice must be given. 
If installations are abandoned or disused they must be entirely 
removed. 

(6) With regard to the general status of installations, it has 
been thought useful to lay down expressly in paragraph 3 of this 
article, that they do not possess the status of islands and that the 
coastal State is not entitled to claim for installations any territorial 
waters of their own or to treat them as relevant for the delimita- 
tion of territorial waters. In particular, they cannot be taken into 
consideration for the purpose of determining the baseline. On the 
other hand, the installations are under the jurisdiction of the 
coastal State for the purpose of maintaining order and of the civil 
and criminal competence of its courts. 

(7) While, generally, the Commission, by formulating the test 
of unjustifiable interference, thought it advisable to eliminate any 
semblance of rigidity in adapting the existing principle of the 
freedom of the sea to what is essentially a novel situation, it 



21S 

thought it desirable to rule out expressly any right of interference 
with navigation in certain areas of the sea. These areas are defined 
in paragraph 5 of this article as narrow channels or recognized 
sea lanes essential to international navigation. They are under- 
stood to include straits in the ordinary sense of the word. The 
importance of these areas for the purpose of international naviga- 
tion is such as to preclude, in conformity with the tests of 
equivalence and relative importance of the interests involved, the 
construction of installations or the maintenance of safety zones 
therein, even if such installations or zones are necessary for the 
exploration or exploitation of the continental shelf. 

p. COMMENTARY TO ARTICLE 73 

(1) The text of the draft as adopted at the fifth session con- 
tained a general arbitration clause providing that any disputes 
which might arise between States concerning the interpretation 
or application of the articles should be submitted to arbitration 
at the request of any of the parties. 

(2) At its eighth session the Commission amended this article 
to provide that disputes should be settled by the parties by a 
method agreed between them. Failing such agreement, each of 
the parties would have the right to submit the dispute to the 
International Court of Justice. 

(3) The majority of the Commission considered that a clause 
providing for compulsory arbitration would not be of much prac- 
tical value unless the Commission at the same time laid down the 
procedure to be followed, as in the case of disputes relating to 
conservation of the living resources of the sea. It was pointed 
out, however, that in the present context the disputes would not 
be of an extremely technical character as in the case of the 
conservation of the living resources of the sea. It was therefore 
considered that arbitration could be replaced by reference to the 
International Court of Justice. 

(4) The Commission did not agree with certain members who 
were opposed to the insertion in the draft of a clause on com- 
pulsory arbitration or jurisdiction, on the ground that there was 
no reason to impose on States one only of the various means pro- 
vided by existing international law, and particularly by article 33 
of the United Nations Charter, for the pacific settlement of inter- 
national disputes. These members also pointed out that the 
insertion of such a clause would make the draft unacceptable to 
a great many States. The majority of the Commission nevertheless 
considered such a clause to be necessary. The articles on the 



214 

continental shelf are the result of an attempt to reconcile the recog- 
nized principles of international law applicable to the regime 
of the high seas, with recognition of the rights of the coastal 
State over the continental shelf. Relying, as it must, on the 
continual necessity to assess the importance of the interests 
at stake on either side, this compromise solution must allow for 
some power of discretion. Thus, it will often be necessary to rely 
on a subjective assessment — with the resultant possibilities of 
disagreement — to determine whether, in the terms of article 45 
paragraph 1, the measures taken by the coastal State to explore 
and exploit the continental shelf result in "unjustifiable" inter- 
ference with navigation or fishing; whether, as is laid down in 
paragraph 2 of that article, the safety zones established by the 
coastal State do not exceed a "reasonable" distance around the 
installation ; whether, in the terms of paragraph 5 of the article, a 
sea lane is "recognized" and whether it is "essential to inter- 
national navigation"; finally, whether the coastal State, when 
preventing the laying of submarine cables or pipelines, is really 
acting in the spirit of article 44, which only authorises such action 
when it comes within the scope of "reasonable" measures for the 
exploration and exploitation of the continental shelf. If it is not 
kept within the limits of respect for law and is not impar- 
tially complied with, the new regime of the continental shelf 
may endanger the higher principle of the freedom of the seas. 
Consequently, it seems essential that States which disagree con-» 
cerning the exploration and exploitation of the continental shelf 
should be required to submit any dispute arising on this subject 
to an impartial authority. For this reason the majority of the 
Commission thought it necessary to include the clause in ques- 
tion. It is incumbent on the parties to decide the manner in which 
they wish to settle their differences; if the parties are unable to 
reach agreement on the manner of settlement, however, either 
party may refer the matter to the International Court of Justice. 

B. Report of the International Technical Conference on 
the Conservation of the Living Resources of the Sea — 
Rome (1955) 

1. Note. The International Technical Conference held in Rome in April- 
May, 1955 was called by the Secretary-General of the United Nations at 
the request of the General Assembly. The Report was referred to the 
International Law Commission of the United Nations in order that it might 
be taken into account during the Commission's work on the law of the sea. 
United Nations General Assembly Resolution 900 (IX) requesting that this 



215 

Technical Conference be held is reproduced in the text of the Eeport of the 
Conference, A/Conf. 10/6, reprinted below. Technical papers presented at the 
Conference, containing valuable information with charts and maps, may be 
found in A/Conf. 10/7, January, 1956. This latter document has not been 
reproduced herein. 

2. Report of the International Technical Conference on the 
Conservation of the Living Resources of the Sea 

18 April to 10 May 1955, Rome 
(A/Conf. 10/6, July, 1955) 

I. INTRODUCTION 

1. The General Assembly on 14 December 1954 adopted resolu- 
tion 900 (IX), which reads as follows: 

The General Assembly, 

Considering that the International Law Commission has pro- 
posed for the consideration of the General Assembly draft 
articles 1 covering certain basic aspects of the international 
regulation of fisheries, and considering also that that Com- 
mission has not yet concluded its study of related questions, 

Having regard to the fact that the problem of the international 
conservation of fisheries involves matters of a technical char- 
acter which require consideration on a wide international basis 
by qualified experts, 

Being of the opinion that an international technical confer- 
ence should be held in the near future to consider the problems 
of fishery conservation and make recommendations thereon, 

Recalling that, by resolution 798 (VIII) of 7 December 1953, 
the General Assembly, having regard to the fact that the 
problems relating to the high seas, territorial waters, contiguous 
zones, the continental shelf and the superjacent waters are 
closely linked together juridically as well as physically, decided, 
consequently, not to deal with any aspect of those topics until 
all the problems involved had been studied by the International 
Law Commission and reported upon by it to the General 
Assembly, 

Having regard to the fact that the technical studies relating 
to the conservation, protection and regulation of fisheries and 
other resources of the sea are also closely linked to the solution 
of the problems mentioned in the preceding paragraph, 



1 See Official Records of the General Assembly, Eighth Session, Supplement 
No. 9, document A/2456, paragraph 94. 



216 

1. Requests that Secretary-General to convene an interna- 
tional technical conference at the headquarters of the Food and 
Agriculture Organization of the United Nations on 18 April 
1955 to study the problem of the international conservation of 
the living resources of the sea and to make appropriate scientific 
and technical recommendations which shall take into account 
the principles of the present resolution and shall not prejudge 
the related problems awaiting consideration by the General 
Assembly ; 

2. Invites all States Members of the United Nations and 
States members of the specialized agencies to participate in the 
Conference and to include among their representatives individ- 
ual experts competent in the field of fishery conservation and 
regulation ; 

3. Invites the interested specialized agencies and inter-gov- 
ernmental organizations concerned with problems of the inter- 
national conservation of the living resources of the sea, to send 
observers to the Conference; 

4. Requests the Secretary-General to arrange for the neces- 
sary staff and facilities which would be required for the Con- | 
ference, it being understood that the technical services of 
Governments of Member States and the technical and secretarial 
services of the Food and Agriculture Organization shall be 
utilized as fully as practicable in the arrangements for such 
a conference ; 

5. Requests the Secretary-General to circulate the report of 
the Conference for information to the Governments of all States 
invited to participate in the Conference ; 

6. Decides to refer the report of the said scientific and 
technical Conference to the International Law Commission as 
a further technical contribution to be taken into account in its 
study of the questions to be dealt with in the final report which 
it is to prepare pursuant to resolution 899 (IX) of 14 December 
1954. 

2. In pursuance of the above resolution, the International 
Technical Conference on the Conservation of the Living Resources 
of the Sea convened at the headquarters of the Food and Agri- 
culture Organization of the United Nations on 18 April 1955. It 
held twenty-four plenary meetings and concluded its work on 
10 May 1955. 

3. The Governments of the following forty-five States sent 
representatives : 



Greece 


Panama 


Guatemala 


Paraguay 


Honduras 


Peru 


Iceland 


Poland 


India 


Portugal 


Indonesia 


Spain 


Israel 


Sweden 


Italy 


Turkey 


Japan 


Union of South Africa 


Korea, 


Union of Soviet Social- 


Republic of 


ist Republics 


Mexico 


United Kingdom 


Monaco 


United States of 


Netherlands 


America 


Nicaragua 


Uruguay 


Norway 


Yugoslavia 



217 

Argentina 

Australia 

Belgium 

Brazil 

Canada 

Chile 

China 

Colombia 

Costa Rica 

Cuba 

Denmark 

Ecuador 

Egypt 

El Salvador 

France 

Germany 

Federal 

Republic of 

4. The Governments of the following six States sent observers : 
Bolivia, Ceylon, Dominican Republic, Romania, Thailand and 
Venezuela. 

5. The Food and Agriculture Organization of the United 
Nations and the United Nations Educational, Scientific and 
Cultural Organization were represented by observers. 

6. The following inter-governmental fishery organizations were 
represented by observers: 

General Fisheries Council for the Mediterranean 

Indo-Pacific Fisheries Council 

Inter-American Tropical Tuna Commission 

International Commission for the Northwest Atlantic Fish- 
eries 

International Council for the Exploration of the Sea 

International North Pacific Fisheries Commission 

International Pacific Halibut Commission 

International Pacific Salmon Fisheries Commission 

International Whaling Commission 

Permanent Commission for the Exploitation and Conserva- 
tion of the Maritime Resources of the South Pacific 

Permanent Commission under the 1946 Convention for the 
Regulation of Meshes of Fishing Nets and the Size Limits 
of Fish 

[Paragraphs 7-14 omitted.] 



218 

15. The result of the deliberations of the Conference is sum- 
marized in the following sections of the report. Reservations of 
the delegations of Chile and Peru to sections VI and VII of the 
report and reservation of the delegation of Ecuador to all sections 
of the report appear in annex A. 

II. OBJECTIVES OF FISHERY CONSERVATION 

16. Conservation is essential in the development of a rational 
exploitation of the living resources of the seas. Consequently, con- 
servation measures should be applied when scientific evidence 
shows that fishing activity adversely affects the magnitude and 
composition of the resources or that such effects are likely. 

17. The immediate aim of conservation of living marine re- 
sources is to conduct fishing activities so as to increase, or at least 
to maintain, the average sustainable yield of products in desirable 
form. At the same time, wherever possible, scientifically sound 
positive measures should be taken to improve the resources. 

18. The principal objective of conservation of the living re- 
sources of the seas is to obtain the optimum sustainable yield so 
as to secure a maximum supply of food and other marine products. 
When formulating conservation programmes, account should be 
taken of the special interests of the coastal State in maintaining 
the productivity of the resources of the high seas near to its 
coast. 2 

III. TYPES OF SCIENTIFIC INFORMATION REQUIRED FOR 
A FISHERY CONSERVATION PROGRAMME 

19. Effective conservation of any resource of the sea requires 
scientific information, based on statistical records of the amount 
and kind of fishing and of resulting catches, and on integrated 
research on the biology and conditions of existence of the resource. 
It is therefore essential that any nation engaging in sea fishing 
collect adequate statistical records of fishing effort and catch; it 
should also conduct pertinent biological and other investigations, 
to serve as a basis for ensuring the conservation of the resource 
being exploited. Since both the determination of the need for 
conservation measures and the selection of adequate and effective 
measures often depend on having data over a long period of time, 
it is most desirable that adequate records be collected, and 
biological and other research be conducted, from the beginning 
of the development of a fishery. 



2 At its 19th plenary meeting on 5 May, the Conference decided, by a vote 
of 18 against 17, with 8 abstensions, to include this sentence in its report: 
see A/CONF.10/SR19. 



219 

20. Scientific information is required in order to provide 
answers, for a given fishery resource, to the following problems : 

(a) Whether regulation of the amount, manner of kind of 
fishing may be expected to produce desirable changes in the amount 
of the catch or its quality (It is important to determine whether 
the amount, manner and kind of fishing are such that regulation 
would maintain or improve the quantity or quality of the sustain- 
able catch, because only in this case is the application of regulatory 
measures indicated. In order to make such a determination it is 
often necessary to consider also the fluctuations in the fish popula- 
tion resulting from the effects of environmental factors uncon- 
nected with amount, manner or kind of fishing) ; 

(b) If conservation measures are indicated, the particular 
measures to be adopted to produce the effects desired ; 

(c) The measures, other than control of amount, manner or 
kind of fishing, to be undertaken to improve the quantity or quality 
of the catch. 

21. The scientific information required will include some or all 
of the following types : 

(a) Extent of separation of the fishery resource into inde- 
pendent or semi-independent populations, which constitute the 
natural biological units of the resource to be dealt with by a 
conservation programme ; 

(b) Magnitude and geographic ranges of the populations 
constituting the resource, as a basis for effective investigation 
and regulation, since these need to be applied over whatever sea 
areas are occupied by the populations to be conserved ; 

(c) Pertinent facts respecting the life history (such as 
growth, mortality rates, migration, recruitment, etc.), ecology, 
behaviour and population dynamics of the species constituting 
the resource, including fluctuations in abundance and variations in 
distribution and behaviour which are due to changes in the biotic 
and abiotic factors of the environment, and which are independent 
of the amount of fishing, and including the inter-relationships of 
the community of organisms of which the exploiited. species forms 
a part; 

(d) Effects of the amount, manner and kind of fishing on 
the resource and on the quantity and quality of the sustainable 
average catch to be obtained from it ; 

(e) Relationships of the resource to other species which are 
members of the same ecological community and are being exploited 
simultaneously by the same fishing equipment. 

22. The degree of elaboration of the scientific investigations 
required to solve the conservation problems presented by particular 



220 

resources, or in particular areas of the sea, is extremely variable. 
In some cases quite simple investigations will be adequate to deter- 
mine the need for application of conservation measures, and to 
indicate appropriate measures to be applied. In other cases very 
detailed and extensive investigations will be necessary. The re- 
quirements of each case must be determined on scientific evidence. 

IV. TYPES OF CONSERVATION MEASURES APPLICABLE IN 
A CONSERVATION PROGRAMME 

23. Several general types of measures may be applied in a 
conservation programme, under each of which there are several 
specific types of measures which may be used, depending on the 
nature of the resource and the way in which it is harvested : 

(a) Regulation of the amount of fishing to maintain or to 
increase the average sustainable catch, by 

(i) Directly limiting the amount of the total catch by 
fixing a maximum annual catch ; 

(ii) Indirectly limiting the amount of the catch by closed 
seasons and closed areas, or by the limitation of fishing gear and 
ancillary equipment ; 

(b) Protection of sizes of fish, the conservation of which will 
result in a greater average catch or a more desirable quality, by 

(i) Regulation of fishing gear to achieve differential cap- 
ture of specified sizes ; 

(ii) Prohibition of landing of fish below a specified size, 
and requiring their return to the sea alive, if this is technically 
practicable ; 

(iii) Prohibition of fishing in areas where, or seasons 
when, small fish predominate; 

(c) Regulations designed to assure adequate recruitment : 

(i) Control of the amount of fishing by any of the means 
indicated under (a) above to ensure adequate spawning stock; 

(ii) Differential harvesting of different sizes of fish, by 
any of the means indicated under (b) above to lower the fishing 
rate on immature fish ; 

(iii) Prohibition of fishing in spawning areas or during 
spawning seasons ; 

(iv) Preservation and improvement of spawning grounds; 

(v) Differential harvesting of sexes to achieve a desirable 
sex ratio in the population (This type of measure is not generally 
applicable, but has been applied to some Crustacea, mammals and 
fishes) ; 

(d) Measures for improvement and increase of marine 
resources : 



221 

(i) Artificial propagation; 

(ii) Transplantation of organisms from one biogeo- 
graphical area to another, with due precaution against adverse 
effects ; 

(iii) Transplantation of young to better environmental 
conditions. 

24. The determination of which of these measures should be 
applied in a given conservation programme will depend on the 
details of the life history, ecology, population dynamics and be- 
haviour of the species constituting the resource and on the 
technical nature of the fishing. The efficient application of con- 
servation measures requires adequate prior scientific investigation 
of these matters. Recommendations for regulations should be 
made only on the basis of such investigations. 

V. PRINCIPAL SPECIFIC INTERNATIONAL FISHERY CON- 
SERVATION PROBLEMS OF THE WORLD FOR THE 
RESOLUTION OF WHICH INTERNATIONAL MEASURES 
AND PROCEDURES HAVE BEEN INSTITUTED 

25. In various regions of the world, agreed international 
measures and procedures have been instituted for the resolution 
of specific international fishery conservation problems. This 
section of the report reviews the existing international conserva- 
tion organizations in the North Atlantic, South Atlantic, Medi- 
terranean, Indo-Pacific, North Pacific and South Pacific regions 
and in the Antarctic Ocean and other whaling areas. It also states 
the principles which have been developed in the formation of 
these various organizations. 

Review of Existing International Conservation Organizations 

26. International arrangements for the conservation of par- 
ticular resources, or for the conservation of resources in a par- 
ticular area, have been made in many parts of the world. While 
some of these arrangements provide only for required research, 
others provide also for the recommendation and/or application of 
conservation measures. There is a total of eleven such councils 
and conventions involving forty-two different States. Some of the 
States are members of more than one council or convention so that 
membership of the eleven organizations totals seventy-eight. 3 



3 See A/CONF. 10/L 4 Rev, 1, included in the supplement to this report. 
[Omitted.] 



222 

North Atlantic 

27. The International Council for the Exploration of the Sea, 
established in 1902, provides for the coordination of the scientific 
research of most countries in northern and western Europe on 
the fish stocks of the North Sea and the Baltic and those in the 
North-East Atlantic and the Greenland waters. Membership is 
open to all nations having an interest in the area. 

28. The 1946 Convention for the Regulation of Meshes of Fish- 
ing Nets and the Size Limits of Fish is an arrangement among 
thirteen nations of Europe for the application of specific con- 
servation measures. These measures are based on the scientific 
advice of the International Council for the Exploration of the 
Sea, which is given through a liaison committee appointed by the 
Council. 

29. Canada, Newfoundland, the United States and France 
organized the North American Council on Fishery Investigations, 
which was active from 1920 to 1938, to co-ordinate their scientific 
research in the North-West Atlantic, operating on the pattern of 
the International Council for the Exploration of the Sea. This 
North American Council provided a background for the sub- 
sequent establishment of the International Convention for the 
North-West Atlantic Fisheries. 

30. The International Convention for the North-West Atlantic 
Fisheries, which came into force in 1950, relates to the sea fisheries 
of the North-West Atlantic Ocean, and is open to all nations who 
participate in the fisheries of this region and to the adjacent 
coastal States. Since some nations are not concerned with prob- 
lems in the entire region, it is divided into sub-areas, within which 
the investigation and conservation of the fish resources are the 
concern of panels consisting of representatives of interested States, 
that is, States fishing in the sub-area and States adjacent to it. 
The Commission established under the Convention develops the 
necessary programmes and co-ordinates the research which is done 
by member Governments. Recommendations for regulations are 
made by the Commission on the basis of proposals from the 
appropriate panels, and become effective for a given sub-area 
when accepted by the government members of the panel for such 
sub-areas. 

South Atlantic 

31. There are no international arrangements in this area, except 
for whaling, discussed separately below. 



223 

Mediterranean 

32. The International Commission for the Scientific Exploration 
of the Mediterranean was organized in 1919. Its function is to 
co-ordinate the scientific research in this sea, both oceanographical 
and biological, but without particular reference to fisheries. 

33. The General Fisheries Council for the Mediterranean, 
organized in 1952, and sponsored by the Food and Agriculture 
Organization of the United Nations (FAO), is an association of 
Mediterranean States for the purpose of co-ordinating research 
and development activities related to the fisheries of this sea. It 
has at present eleven members. There is a liaison committee 
between this Council and the International Commission founded 
in 1919. 

Indo-Pacific 

34. The Indo-Pacific Fisheries Council is another FAO-spon- 
sored Council, for the co-ordination of research, conservation and 
development of the fisheries (both inland and marine) of this 
region. It was founded in 1949 and is open to all nations of the 
region ; it has at present sixteen members. 

North Pacific 

35. The Fur Seal Treaty of 1911 between Japan, Russia, Canada 
and the United States is the earliest example of a convention for 
the conservation of a single resource. This Convention, which has 
resulted in the rebuilding and management of the fur seal herds 
of the North Pacific, provided particularly for the cessation of 
pelagic sealing. Although the treaty was terminated in 1941, 
following the withdrawal of Japan, the United States and Canada 
have continued the management of the herds in the eastern North 
Pacific, and the Soviet Union has continued to manage those to the 
west. Negotiation of a new convention is expected in the near 
future. 

36. The International Pacific Halibut Convention, negotiated 
between the United States and Canada in 1923, established a Com- 
mission which, with its own research staff, undertook the necessary 
investigations of their halibut fisheries in the North- West Pacific. 
In 1930 the Commission was given authority to regulate the fishing 

ion the basis of its scientific findings, as well as to continue the 

research necessary for a continuing conservation programme, to 

I make possible the attainment of the maximum sustainable catch. 

37. The International Sockeye Salmon Convention of 1937, 



224 

between the United States and Canada, provided for a Commission 
which, with its own research staff, should investigate the sockeye 
salmon spawning in the Fraser River watershed. After some years 
of investigation the Commission recommended the construction of 
certain fishways, and after eight years of such investigations had 
authority to regulate and to take action to conserve and rebuild 
those salmon populations. It is now in its eighteenth year of 
operation and currently conducts both research and management 
of the fishery. 

38. The International North Pacific Fisheries Convention was 
recently negotiated between Japan, Canada, and the United States 
and entered into force in 1953. It is concerned with stocks of fish 
in the convention area under substantial exploitation by two or 
more contracting parties. It does not include salmon stocks of the 
North-West Pacific since neither Canada nor the United States 
fish such stocks. Research is conducted by the national research 
agencies, which are co-ordinated by the Commission established by 
the Convention, but the Commission may employ its own scientific 
staff if necessary. Decisions and recommendations for regulations 
are confined to the contracting countries engaged in the exploita- 
tion of a given stock on a substantial scale. Under this Convention, 
States which have not engaged in substantial exploitation of 
certain stocks of fish agree to abstain from fishing those stocks 
where it can be shown that all the following conditions are 
satisfied: (a) more intensive exploitation will not provide a sub- 
stantial increase in yield, (b) the stock is under conservation 
regulation and (c) is subject to extensive scientific study designed 
to discover whether the stock is being fully utilized, and what 
conditions are necessary for maintaining its maximum sustained 
productivity. 

39. The Inter-American Tropical Tuna Convention, operating 
in the tropical and sub-tropical eastern Pacific, was negotiated in 
1949 between Costa Rica and the United States to obtain scientific 
information respecting the tunas and tuna bait-fishes in the 
tropical and sub-tropical eastern Pacific, required as a basis for 
maintaining the populations of those fishes at levels which will 
permit maximum sustainable catches. The treaty is open to 
adherence by all nations having an interest in the fishery. Panama 
adhered in 1953. The Commission established by this Convention 
conducts scientific investigations with its own staff, and makes 
conservation recommendations based on the research results. 

South Pacific 

40. The Permanent Commission for the Exploitation and Con- .j 



225 

servation of the Maritime Resources of the South Pacific, which 
was inaugurated in 1954 between Peru, Ecuador and Chile, has 
broad terms of reference. It proposes to: (a) unify fishing and 
whaling regulations of the three countries, (b) promote scientific 
investigations, (c) compile statistics and exchange information 
with other agencies and (d) co-ordinate the work of the three 
countries in all matters pertaining to the conservation of the living 
resources of the sea. 

Antarctic and other whaling areas 

41. The International Convention of 1946 for the Regulation of 
Whaling, to which seventeen nations now adhere, established in 
1949 a Commission which co-ordinates and reviews research of 
member Governments, reviews and evaluates scientific findings, 
and makes conservation regulations on the basis of those findings. 
It is concerned with the conservation of whales in all areas where 
whaling is conducted. 

42. The Permanent Commission for the Exploitation and Con- 
servation of the Maritime Resources of the South Pacific, men- 
tioned above, regulates whaling and the conservation of whales 
in the South-East Pacific. 

Principles of International Conservation Organizations 

43. The older research and management conventions operating 
with permanent commissions have been highly successful in 
restoring and maintaining the productivity of international re- 
sources. In general, the newer conventions are making encouraging 
progress in this direction. Experience in the international con- 
servation of living marine resources reflected in the foregoing 
organizations has led increasingly to the incorporation in con- 
servation conventions of certain basic provisions in the application 
of conservation programmes. The more important of such pro- 
visions are: 

(a) A sufficiently large geographical area within which 
research and regulation are to be carried out to encompass the 
entire range of the populations constituting the resource or 
resources with which the convention is concerned ; 

(b) All interested nations, both the fishing nations and the 
adjacent coastal States, are included in the international organiza- 
tions responsible for conservation of a given resource, or in a 
given region; 

(c) Adequate scientific research, carefully evaluated as out- 
lined in sections III and IV of this report, for determining the 



226 

need for conservation measures, and the formulation of the 
particular measures to be applied ; 

(d) Continuing research and review ; 

(e) Where international organizations are granted regulatory- 
powers, these powers are sufficiently broad to ensure the full 
application of all suitable conservation measures which have been 
arrived at on the basis of adequate scientific investigations ; 

(f ) Facilities for adjusting and revising the convention to 
meet changing conditions in the fishery and to take advantage of 
advancing technical and scientific knowledge ; 

(g) Clear rules conveying the rights and duties of the 
member States, the conservation measures to be recommended, 
the functions of the commissions set up under the convention, and 
the authority, of these commissions to regulate or recommend 
regulations, and how these recommendations shall be handled ; 

(h) Facilities to obtain advice from the interested public, 
through advisory committees or otherwise, regarding the applica- 
bility and practicability of management programmes, and meas- 
ures and facilities to inform the public concerning the work of 
the commission, its objectives and accomplishments. 

VI. APPLICABILITY OF EXISTING TYPES OF INTERNA- 
TIONAL CONSERVATION MEASURES AND PROCEDURES 
TO OTHER INTERNATIONAL FISHERY CONSERVATION 
PROBLEMS 

Problems of the Coastal State — Extent of Interest and 

Responsibility 

44. Two trends of thought became apparent during the Con- 
ference, as to the place of coastal States in the matter of 
conservation. All agreed that conservation measures adequate both 
from the technical and scientific points of view should, where 
needed, be introduced in the areas in question in order to prevent 
all those in the various countries who are concerned with the 
fisheries from causing a decrease in the sustainable yield of the 
resources. 

45. According to one group, however, the coastal State has a 
special interest in the measures of conservation to be applied. 
Within this group, the points of view expressed concerning the 
rights and duties of the coastal State covered a wide range. These 
varied from the proposal which was accepted by the Conference 
and appears in section II, paragraph 3, of this report, that the 
coastal State be regarded as having a special interest in the 
conservation of the living resources of the sea adjacent to its 



227 

coasts, to the proposal that the coastal State alone should be 
entrusted with control and conservation measures in areas near 
its coast, with no necessary limitation except that the measures 
should be in accord with the general principles of a technical 
character adopted at the Conference, and should be based on the 
maintenance of the existing ecological system in a given maritime 
zone. The view was also expressed that, in considering the applica- 
tion of conservation measures, the people nearest to, and dependent 
on, the resources for food should be given first consideration. These 
views result from the argument that the coastal State has a special 
interest and responsibility for the conservation of the biological 
wealth near its shores and that it is in consequence the best 
qualified to be entrusted with the task of conservation. 

46. It was also emphasized in the discussions in this connexion 
that the special interests of the coastal State should be regarded 
as related to the resources or stocks which the States concerned 
aim to conserve through efforts which they make, or through the 
various measures which they may take, as for example the 
development of fisheries by artificial means, such as acclimatiza- 
tion, the improvement of the natural environment of the fishery, 
etc. 

47. According to the other group, the coastal State should 
refrain from adopting any conservation measures for high seas 
fisheries applicable to the nationals of other countries, without 
the agreement of the other States concerned. This view proceeds 
from the consideration that conservation measures should be based 
on scientific and technical evidence, that the coastal State is not 
necessarily better qualified than other States concerned to assess 
scientific truth, and that all States concerned should be entitled 
to supply pertinent scientific evidence and to have it considered 
on an equal footing, with a view to formulating adequate conserva- 
tion measures. 

48. In the plenary meeting of 7 May a proposal concerning the 
situation of the coastal State was presented by the delegations 
of Cuba and Mexico. 4 The Conference on this occasion declared 
itself (by a vote of 21 to 20 with 3 abstentions) not competent to 
deal with this proposal. The vote was taken on the motion by the 
delegation of Norway that the Cuban-Mexican proposal was out- 
side the scope of the Conference. 5 

49. Existing procedures. Many of the present fishery conserva- 
tion conventions may be adhered to by any interested State. This 



4 See A/CONF.10/L.40, formerly A/CONF.10/GC.l/Rev.l. 

5 The discussion is recorded in A/CONF.10/SR.21. 



228 

provides an opportunity for the coastal State to participate iii 
the work and decisions of the commission operating under the 
convention. The International Conference for the Northwest 
Atlantic Fisheries, particularly, provides that each contracting 
party with coastline adjacent to a sub-area may be represented 
on the panel for that sub-area, whether or not it fishes in that 
sub-area. 

Problems Relating to the Operation of Conventions, 
Including Procedures of Operation 

50. Failure of all States concerned to participate in the prepara- 
tion, negotiation and establishment of international fishery con- 
servation conventions impedes or limits progress in achieving the 
objectives of conservation. Furthermore, commissions functioning 
under such conventions are handicapped in their operation when 
all States concerned do not participate in the scientific research 
and investigation undertaken with a view to achieving the ob- 
jectives of the convention. 

51. The commissions are also handicapped if the conventions 
do not clearly and fully define the rights and duties of the member 
countries and do not contain precise stipulations both as to the 
procedures and the conservation measures to be recommended and 
applied. This includes definition of the duties and authority of 
the commissions with respect to the kinds and application of 
conservation measures, or with respect to the recommendation of 
such measures. It was also considered that the commissions cannot 
be most effective and expeditious in progressing towards their 
objectives unless they are given considerable latitude as to the 
specific conservation measures which they may apply or recom- 
mend for application. Too severe a limitation of their authority 
can result in a reduction in their effectiveness and delay in 
achieving results. 

52. Existing procedures. Some present conventions are so 
framed that new measures can be adopted at any time when 
necessary for achieving the desired objectives. 

53. Some are open-ended so that any concerned State may 
adhere ; other conventions include all of the countries engaged in 
the exploitation of the fish stock or stocks covered by the con- 
ventions. These conventions, in addition, generally specify clearly 
the competence of the commissions for which they provide, and 
include rules for their operation. The majority of the conventions 
give their commissions considerable latitude with respect to 
determination of the specific conservation measures which they 
may use. 



229 
Biological or Geographic Coverage of Conventions 

54. Lack of co-operation by any State participating in fishing 
on the stocks of fish or in the areas covered by the conventions may 
result in the conventions becoming ineffective. Scientific evidence 
clearly demonstrates that effective conservation management of 
a stock of fish cannot be achieved unless all States engaged in 
substantial exploitation of that stock come within the management 
system. 

55. Existing procedures. Present conventions generally cover : 

(a) One or more stocks of marine species, which can be 
separately identified and suitably regulated ; or 

(b) A specified area, in cases where the identification of 
stocks mentioned in the preceding paragraph is impossible in 
practice, because of the interdependence of several species or for 
any other reason. 

Problems Involved in Reaching Agreement on Conservation 
Measures and Procedures 

56. Failure to reach agreement on the conclusion to be drawn 
from a given set of data has sometimes resulted in conservation 
programmes being inadequate or ineffective. 

57. In most instances, disputes can, of course, be settled by the 
bodies set up by the convention to co-ordinate and direct the 
conservation measures to be adopted. The utility of such bodies 
is beyond question, but their role is necessarily limited to the 
purposes for which they were set up. There may be occasional 
disagreements in such bodies which prevent or impede the develop- 
ment and implementation of an effective conservation system. 
Such disagreements might be roughly grouped into three general 
categories : (a) concerning questions of a legal or juridical nature ; 

(b) concerning questions of a scientific and technical character; 

(c) concerning other questions. 

58. Existing procedures. Problems covered in category (a) 
can be handled in the first instance through diplomatic channels 
and then if necessary by recourse to existing international jurid- 
ical procedures. 

59. One method of handling a problem in category (b) was 
included in the North Pacific Fisheries Convention. This Con- 
vention provides that in the event the Commission operating under 
the Convention fails, in a reasonable period of time, to reach 
agreement on the conclusions from certain research work, bearing 
upon a problem of special importance, the question shall be 
referred to a committee of competent and neutral (impartial) 



230 

scientists selected by the contracting parties. The majority decision 
of the committee determines the recommendations to be made 
by the Comission. 

Problems Created by New Entrants into a Fishery Under 
Conservation Management 

60. An established conservation programme can be made in- 
effective by the participation of nationals of a State newly entering 
into the exploitation of the stock of fish, with no commitment to 
observe the regulations. Three aspects of this problem are con- 
sidered. 

Case 1 

61. A special case exists where countries, through research, 
regulation of their own fishermen and other activities, have 
restored or developed or maintained stocks of fish so that their 
productivity is being maintained and utilized at levels reasonably 
approximating their maximum sustainable productivity, and 
where the continuance of this level of productivity depends upon 
such sustained research and regulation. Under these conditions, 
the participation of additional States in the exploitation of the 
resource will yield no increase in food to mankind, but will threaten 
the success of the conservation programme. Where opportunities 
exist for a country or countries to develop or restore the pro- 
ductivity of resources, and where such development or restoration 
by the harvesting State or States is necessary to maintain the 
productivity of resources, conditions should be made favorable 
for such action. 

62. Existing procedures. The International North Pacific 
Fishery Commission provides a method for handling the special 
case mentioned above. It was recognized that new entrants in 
such fisheries threatened the continued success of the conservation 
programme. Under these circumstances the State or States not 
participating in fishing the stocks in question agreed to abstain 
from such fishing when the Commission determines that the stock 
reasonably satisfies all the following conditions: 

(a) Evidence based upon scientific research indicates that 
more extensive exploitation of the stock will not provide a 
substantial increase in yield; 

(b) The exploitation of the stock is limited or otherwise 
regulated for conservation purposes by each party substantially 
engaging in its exploitation ; and 

(c) The stock is the subject of extensive scientific study 



231 

designed to discover whether it is being fully utilized, and what 
conditions are necessary for maintaining its maximum sustained 
productivity. The Convention provides that, when these conditions 
are satisfied, the States which have not engaged in substantial 
exploitation of the stock will be recommended to abstain from 
fishing such stock, while the States engaged in substantial ex- 
ploitation will continue to carry out the necessary conservation 
measures. Meanwhile, the abstaining States may participate in 
fishing other stocks of fish in the same area. 

Case 2 r ] 

63. A somewhat different case was discussed, involving new 
entrants into a fishery which a coastal State is regulating for 
conservation purposes, and when existing scientific evidence in- 
dicates the necessity of continuing such regulations for conserva- 
tion purposes. 

64. Existing procedures. In general this conservation problem 
can be handled if the new entrant should declare itself ready to 
observe the conservation regulations in force and undertake to 
co-operate with the other States concerned in carrying out the 
relevant programme of research and management. 

Case 3 

65. A variation of this problem exists where the intensive 
exploitation of offshore waters adjoining heavily fished inshore 
waters, by a new fishing operation initiated either by the coastal 
States or by another State, considerably affects the abundance 
of fish in the inshore waters. 

66. Existing procedures. The conservation aspect of the prob- 
lem is taken care of if the entire area in which the stocks are 
fished, including both the inshore and offshore portions, is included 
within a single conservation system and is subjected to conserva- 
tion regulations adequate to maintain the maximum sustainable 
yield. 

Problems of Effective Enforcement 

67. Some conventions provide that joint regulations shall be 
enforced on fishermen only by officials of their own government. 

68. Other conventions have special provisions for the enforce- 
ment of regulations. The North Pacific Halibut Convention, the 
Pacific Sockeye Salmon Convention and the North Pacific Fishery 
Convention provide that authorized officers of any Contracting 
Party may enforce on the high seas the regulations promulgated 



232 

by the Commission, with respect to the nationals of any Contract- 
ing Party, such nationals being then dealt with in their own 
country. 

Areas and Species Not Covered by Present Conservation 

Conventions 






69. Apart from those fisheries discussed in Section V, sea 
fisheries are at present not subject to international measures of 
conservation. Examples of such fisheries range from newly dis- 
covered resources in the initial phase of exploitation to continually 
worked fisheries which have begun to show signs of depletion. 
According to the nature of the problems associated with them, 
these fisheries could be grouped in four categories. Examples are 
here suggested which would probably fall within each category: 

(a) Fisheries which have been newly or partially developed 
and which are capable of substantial expansion, for example, 
Mid-Pacific tunas; 

(b) Old established fisheries which are apparently being 
fully exploited, but in the case of which scientific information is 
inadequate to suggest the need for conservation measures, for 
example, Rastrelliger (Indo-Pacific mackerel) ; 

(c) Fisheries in separated or contiguous areas depending 
upon the same species, where further expansion of a particular 
fishery may result in depletion of others, for example, Sciaenid 
and Polynemid fisheries of the Arabian sea ; Hilsa fisheries of the 
Bay of Bengal ; 

(d) Fisheries which are already showing signs of overfishing, 
requiring conservation measures at national and international 
levels, for example, in particular, North-West Pacific sockeye 
salmon. 

70. The Inter-American Tropical Tuna Commission, already 
referred to, is an instance where an international conservation 
policy has already been formulated for the exploitation of a fishery 
of comparatively recent origin. Such early action has, however, 
been exceptional. In many cases several fisheries have been 
exploited for centuries, but the absence or inadequacy of statistics 
and other scientific data makes it difficult to suggest conservation 
measures (e.g., several Indo-Pacific fisheries). In such cases, 
especially in countries where the fishing industry is not sufficiently 
advanced, it would be very useful if the scientific facts listed in 
section III could be gathered on a continuing basis both at national 
levels and when necessary by co-operative research projects at 
international levels. 






233 

71. Fisheries under category (c) of paragraph 69 present special 
problems of conservation. In areas where two or more nations are 
engaged in fishing on what is basically the same resource, but by 
different methods, in different areas, in different environments, 
or on different age groups of the same species, management 
programmes can be worked out by agreement between the nations 
concerned. Where inshore fishing has been traditional, new prob- 
lems are introduced by intensive offshore fishing either by new 
enterprises in the same country or by other countries having 
superior experience and equipment. 

72. Category (d) of paragraph 69 includes fisheries of certain 
areas where intensive fishing has been taking place for many years. 
Conservation measures have been enforced by certain countries 
bordering these areas but there is no agreed policy of conservation 
or uniform method of enforcement by all the countries concerned, 
to keep the yield from these waters at the highest sustainable 
level. Closed seas and small gulfs, as well as other areas, may 
present conservation problems of vital interest to the countries 
in the immediate neighborhood. 

73. Many areas of the oceans, although exploited by several 
countries, are still without any agencies for the study of conserva- 
tion problems and the development of conservation measures by 
agreement. The material presented at the Conference does not 
appear adequate to make a full appraisal of these, but some of the 
areas requiring attention, and the fisheries concerned, are sum- 
marized in the following list : 

Area Species 6 

' Fur seal (Callorhinus ur sinus) 
Pacific salmon (Genus Oncorhynchus) 

North-West Pacific «j Herring (Clupea pallasii) 

Sardine (Sardinops melanosticta) 

Flat fishes (Several genera and many species) 

South-East Pacific Anchovies (Engraulis ringens) 

Mediterranean Trawl fisheries 

North-East Atlantic Herring (Clupea harengus) 

Plaice (Platichthys platessa) 
Flounder (Pleuronectes flesus) 
Salmon (Salmo solar) 
Cod (Gadus callarias) 

Arctic seas Seals and other aquatic mammals (Phoca groen- 

landica, Cystophora cristata, Erignathus barba- 
tus, Odobenus tosmarus and others) 

Various seas Shrimp resources developed in recent years. 



Baltic 



6 This list covers only species mentioned in the Conference and is not to be 
considered as complete. 



234 

VII. GENERAL CONCLUSIONS 

74. The Conference notes with satisfaction conservation meas- 
ures already carried out in certain regions and for certain species 
at the national and international level. International co-operation 
in research (including statistical investigation) and regulation in 
the conservation of living resources of the high seas is essential. 
The Conference considers that wherever necessary further con- 
ventions for these purposes should be negotiated. 

75. The present system of international fishery regulation (con- 
servation measures) is generally based on the geographical and 
biological distribution of the marine populations with which 
individual agreements are concerned. From the scientific and 
technical point of view this seems, in general, to be the best way 
to handle these problems. This system is based upon conventions 
signed by the nations concerned. 

76. From the desire expressed during this Conference by all 
participating nations to co-operate in research, and from the 
guidance given by existing conventions, it appears that there are 
good prospects of establishing further conservation measures 
where and when necessary. Having regard to these considerations 
and the existing principles dealt with under Section V, "Principles 
of International Conservation Organizations," the Conference 
considers that the following should be taken as the guiding 
principles in formulating conventions: 

(a) A convention should cover either: 

(i) One or more stocks of marine animals capable of 
separate identification and regulation; or 

(ii) A defined area, taking into account scientific and 
technical factors, where, because of intermingling 
of stocks or for other reasons, research on and regula- 
tion of specific stocks as defined in (i) is imprac- 
ticable ; 

(b) All States fishing the resource, and adjacent coastal 
States, should have opportunity of joining the convention and 
of participating in the consideration and discussion of regulatory 
measures ; 

(c) Conservation regulations introduced under a convention 
should be based on scientific research and investigation ; 

(d) All signatory States should so far as practicable par- 
ticipate directly or through the support of a joint research staff 
in scientific research and investigation carried out for purposes 
of the convention ; 

(e) All conventions should have clear rules regarding the : 



235 

rights and duties of member nations, and clear operating pro- 
cedures ; 

(f ) Conventions should clearly specify the kinds or types of 
measures which may be used in order to achieve their objectives ; 

(g) Conventions should provide for effective enforcement. 

77. Nothing in these guiding principles is intended to limit the 
opportunity of States to make agreements on such other fishery 
matters as they may wish, or to limit the authority or responsi- 
bilities of a State to regulate its fisheries on the high seas when 
its nationals alone are involved. 

78. The Conference considers that conventions, and the regu- 
latory measures taken thereunder, should be adopted by agreement 
among all interested countries. The Conference draws attention, 
however, to the problems arising from disagreements among 
States as to scientific and technical matters relating to fishery 
conservation. Such disagreements may arise as to : 

(a) The need for conservation measures or the nature of any 
measures to be taken ; and 

(b) The need to prevent regulatory measures already adopted 
by one State or by agreement among certain States from being 
nullified by refusal on the part of other States, including those 
newly participating in the fishery concerned, to observe such 
measures. 

79. A solution to such problems might be found through : 

(a) Agreement among States to refer such disagreements to 
the findings of suitably qualified and impartial experts chosen for 
the special case by the parties concerned, with the subsequent 
transmittal of the findings, if necessary, for the approval of the 
parties concerned, and 

(b) Agreement by all States fishing a stock of fish to accept 
the responsibility to co-operate with other States concerned in 
adequate programmes of conservation research and regulation. 

80. The Conference recognizes that a problem is created when 
the intensive exploitation of offshore waters adjoining heavily 
fished inshore waters, by a new fishing operation initiated by 
another State, considerably affects the abundance of fish in the 
inshore waters. This conservation problem is taken care of when 
the entire area is included in a conservation system involving the 
concerned States, and is subject to conservation regulations ade- 
quate to maintain the maximum sustainable yield. However, when 

! no such system exists, overfishing may occur before suitable 

I arrangements and regulations can be developed. Opinion in the 

Conference was more or less evenly divided as to the responsibility 

of the coastal State under such circumstances to institute a con- 



236 

servation programme for the fisheries concerned, pending negoti- 
ations of suitable arrangements. This problem requires further 
study. 

81. It was the consensus of the Conference that it was not 
competent to express any opinion as to the appropriate extent of 
the territorial sea, the extent of the jurisdiction of the coastal 
State over fisheries, or the legal status of the superjacent waters 
of the continental shelf. 

82. The question of the special interests, rights, duties and 
responsibilities of coastal States in the matter of the conservation 
of the living resources of the sea was discussed in the Conference. 
The opinion of the Conference on these matters, and on the 
question as to whether the Conference was competent to consider 
them, was more or less evenly divided. 

83. It is understood that any recitals or explanations of any 
treaties or other formal Acts to which any of the States repre- 
sented at this Conference are parties are not to be considered as 
legal interpretations of such treaties or formal acts. 

ANNEX A 

Reservations of the Delegations of Chile, Ecuador and Peru 

* * * 

Statement by the Delegations of Peru and Chile 

The delegations of Peru and Chile abstain from voting on the 
conclusions contained in sections VI and VII of the Final Report, 
because they consider that, in some respects, their content exceeds 
the competence of the Conference as defined in the convening 
resolution of 14 December 1954 of the General Assembly of the 
United Nations, and because in substance they mainly reflect the 
trend of thought of a group in the Conference which did not hold 
a decisive majority. In any case, the delegations of Peru and Chile 
maintain the primacy of the regulations on conservation of the 
living resources of the sea contained in their respective national 
legislations and in the international conventions to which they 
are parties. 

The delegations of Peru and Chile request that this explanation ' 
of their vote should be recorded in the report of today's session 
and in the Final Report of the Conference. 

Rome, 10 May 1955 

Statement by the Delegation of Ecuador 

The delegation of Ecuador places on record that it approves I 
section VI of the Final Report on the understanding and with the 



237 

assurance that the said section is exclusively descriptive in 
character and merely describes the various views held in the 
Conference, without making recommendations or formulating 
resolutions of any kind. Such, indeed, was the intention of Sub- 
Committee III from which it originated, and which drafted and 
presented it, and the Chairman of that Sub-Committee so stated 
when he submitted the section for examination by the Conference. 
Moreover, a similar statement was made by the Chairman of the 
plenary session at which it was discussed. 

The delegation of Ecuador, in giving its approval, likewise 
places on record its reservation that such approval expressly 
leaves unimpaired any relevant constitutional and legal disposi- 
tions adopted by the Republic of Ecuador, and any stipulations of 
the conventions to which it has acceded, and the unshakable 
attitude it has taken in defence both of the inalienable rights of 
coastal States and of their marine resources. It makes the same 
reservation with regard to Section VII of the Final Report of the 
Conference, and to all the other sections in the Report. 

Rome, 10 May 1955. 

C. Developments at Inter-American Conferences — 

1950-1956 

1. Introductory Note. There have been many interesting developments 
with respect to the continental shelf, territorial waters, and related questions 
both in national claims, treated infra, and at the several echelons of Inter- 
American Conferences, treated herein. The concerted action of Chile, Ecuador, 
and Peru on these matters is dealt with in the next succeeding section. The 
documentation of the Inter-American Conferences is itself extensive. Only 
the most significant documents have been chosen for reproduction here. For 
further study, if desired, a convenient source for developments and docu- 
mentation in permanent form, and generally available in libraries, is the 
Inter- American Juridical Yearbook. Thus far, volumes have been published 
for 1948, 1949, 1950-51, and 1952-54 by the Pan American Union, Wash- 
ington, D.C. 

The study of these matters was inaugurated at the First Meeting of the 
Inter-American Council of Jurists at Rio de Janeiro in May of 1950. Reso- 
lution VII, adopted at that meeting, assigned to its Permanent Committee, 
the Inter- American Juridical Committee, the study, inter alia, of "System of 
Territorial Waters and Related Questions." The Final Act of the First Meet- 
ing is printed at pages 289-309 of the Inter-American Juridical Yearbook, 
1950-51. Resolution VII may be found at pages 299-304 thereof. Subsequent 
developments are shown by the documents that follow. In addition to these 
documents, the following references may be helpful in tracing the develop- 
ments. The Report of the Executive Secretary of the Third Meeting of the 
Inter-American Council of Jurists at Mexico City is published as Pan 
American Union Document CIJ-30 (English) (1956). CIJ-24 (English) 
(1955) Handbook for the Third Meeting prepared by the Department of 



238 

International Law of the Pan American Union, contains a discussion 
of developments at pages 5-29, and a list of legislation in force at pages 
101-103. A similar survey of developments is contained in Document 2 
(English), Background Material on the Juridical Aspects of the Continental 
Shelf and Marine Waters, prepared as above, for the delegates to the Ciudad 
Trujillo Conference, 1956. CIJ-28 (Spanish) contains the discussion and docu- 
ments covering territorial waters and related questions at the Third Meet- 
ing. The texts of various statements by the United States Representative are 
printed in English at pages 443, 464, and 485 thereof. A report of the Third 
Meeting giving the United States view of the proceedings and copies of the- 
relevant resolutions adopted may be found in 34 Department of State Bulletin, 
pages 296-299 (February 20, 1956). A comprehensive account of the devel- 
opments may also be found in A/CN. 4/102, 12 April 1956, a report by the 
Secretary of the International Law Commission of the United Nations. See 
also, Young, "Pan American Discussions on Offshore Claims, "50 A.J.I.L. 909 
(1956). 

2. Draft Convention on Territorial Waters and Related Questions 
(Inter- American Juridical Committee, Rio de Janeiro, July 30, 
1952) 

a. Note. The Inter-American Juridical Committee is the Permanent 
Committee of the Inter-American Council of Jurists. The Council was 
established pursuant to Article 57 of the Charter of the Organization of 
American States. The Charter is reprinted in N.W.C., I.L. Documents 
194-8-49, page 1. This Draft Convention, prepared by the Juridical Committee, 
is reprinted primarily to illustrate the extreme views advanced by certain 
Latin-American states. Hence, the Dissenting Opinion by the Delegates of 
Brazil, Colombia and the United States as well as the Statement of Eeasons 
by the Majority have been omitted. The Dissenting Opinion criticized the 
majority on the substance of its proposals and on the ground that the 
procedure followed in this instance did not comply with the mandate extended 
to the Juridical Committee. The Draft Convention has no legal force and 
it was returned to the Juridical Committee for further study by Resolution 
XIX of the Second Meeting of the Inter-American Council of Jurists. For 
Resolution XIX, see the document immediately following the Draft Con- 
vention. 



b. DRAFT CONVENTION ON TERRITORIAL WATERS AND RELATED 

QUESTIONS 

Article 1. The signatory States recognize that present inter- 
national law grants a littoral nation exclusive sovereignty over 
the soil, subsoil, and waters of its continental shelf, and the air 
space and stratosphere above it, and that this exclusive sovereignty 
is exercised with no requirement of real or virtual occupation. 

Article 2. The signatory States likewise recognize the right 
of each of them to establish an area of protection, control, and 
economic exploitation, to a distance of two hundred nautical miles 
from the low-water mark along its coasts and those of its island 



239 

possessions, within which they may individually exercise military, 
administrative, and fiscal supervision over their respective ter- 
ritorial jurisdictions. 

Article 3. When two or more continental shelves, or areas of 
protection and control, overlap, the States to which they belong 
shall limit the scope of their sovereignty or jurisdiction by mutual 
agreement or by submitting the question to the procedures estab- 
lished by the Parties for the settlement of international contro- 
versies. 

Article 4. The principles of customary or treaty law here- 
tofore recognized between the Parties with respect to territorial 
waters, and specifically those referring to the exploitation of 
natural resources and the rights of navigation, are applicable to 
the continental shelf. 

Article 5. Taking into account the fact that the laws and 
practices of the signatory States show divergences with respect to 
the demarcation of the continental shelf and the area of pro- 
tection, and with respect to the definition and scope of their rights 
thereover as regards the utilization thereof by another State, the 
Parties agree to study these matters jointly in order to obtain, 
as far as possible, a uniform system. 

3. Resolution XIX, "Territorial Waters and Related Questions", 
of the Second Meeting of the Inter-American Council of Jurists 
(Buenos Aires, 1952) and Reservation of the United States 
Thereto 

a. Note. Resolution XIX is included in the Final Act of the Second 
Meeting of the Inter- American Council of Jurists (Buenos Aires, 1953) and 
may be found in Pan American Union Document CIJ-17 (English) of 9 
May 1953 at pages 52-54. The Reservation of the United States to Resolution 
XIX is contained in the above mentioned Final Act and is reprinted in 
CIJ-17, supra, at page 66. The Final Act is also reprinted in English in 
Inter- American Juridical Yearbook, 1952-1954 at pages 192-230. The 
documents quoted below appear in Ibid., pages 221-222, and 228-229. 

******* 

b. RESOLUTION XIX 

territorial waters and related questions 

Whereas : 

Several American countries have adopted legislation and issued 
declarations announcing claim to their continental and island 
shelves, and to their adjacent waters; 

Without expressing, for the present, any opinion on the nature 
and scope of claims that riparian States may make to their 
continental and island shelves, and to their territorial waters, 



240 

it is an obvious fact that development of technical methods for 
exploring and exploiting the riches of these zones has had as a 
consequence the recognition by international law of the right 
of such States to protect, conserve, and promote these riches, as 
well as to ensure for themselves the use and benefit thereof ; 

A careful study must be made of the nature of the rights and 
of the extent to which claims to the continental and insular shelves 
and their adjacent waters may reach, taking into account the 
characteristics of the different zones of the Continent, for which 
it is appropriate to bear in mind the legislation of all American 
States on the subject, as well as their opinions, which should be 
obtained before arriving at a final decision; 

It would be useful, in making the general study of these prob- 
lems, in view of the political implications of the subject, to con- 
sider recommending to the Council of the Organization of Ameri- 
can States that it convene a special Inter-American Conference 
for the purpose of enabling the States to come to agreement. 

Resolution VII establishes that in studying the topic "System 
of Territorial Waters and Related Questions," the Permanent 
Committee shall proceed in accordance with the method provided 
in paragraph 2 of Article 2 of the plan adopted, which reads as 
follows : 

"2. Without prejudice to the provisions of the fore- 
going paragraph, the Inter-American Juridical Commit- 
tee may, on its own initiative, carry out such studies and 
work as it deems advisable for the purposes envisaged in 
this Plan. Nevertheless, in selecting the matters to sug- 
gest to the Council of Jurists for study, the Committee 
should base its decision on the following criteria or 
factors of evaluation: 

(a) Considerations of urgency, necessity, and pos- 
sibility of accomplishment, taking into account espe- 
cially the information obtained from the American 
Governments in this regard; 

(b) Opinions of professors and persons of recog- 
nized competence in the subject; 

(c) Opinions of national or international societies 
and institutions, private or official, devoted to the study 
of international or comparative law ; 

(d) Opinions of other organizations with extensive 
practical experience in these activities. The reports of 
the Committee to the Council of Jurists suggesting 



241 

matters related to the aforementioned purposes shall 
present the conclusions reached in accordance with the 
foregoing bases. " 

The observance of Article 4 of the Plan contained in Resolution 
VII of the first meeting of this Council in 1950, reading as 
follows : 

"1. In the case of studies relating to the development 
of international law, the Permanent Committee shall 
limit itself to writing decisions or reports on the ques- 
tions studied. 

2. Such decisions or reports shall be transmitted 
through the General Secretariat to the several Govern- 
ments so that the latter may formulate their observations 
thereon within three months. After this period, the Com- 
mittee shall draft a new decision or report to be presented 
to the Council of Jurists", 

would have allowed this Second Meeting, had the Juridical Com- 
mittee observed the procedure and stages set forth in that Plan, 
to have the necessary preparatory material to be able to reach 
accurate conclusions on this subject, 
The Inter-American Council of Jurists 

Resolves : 

1. To return to the Inter- American Juridical Committee the 
subject of "System of Territorial Waters and Related Questions" 
referred to in clause a) under title I "Public International Law" 
of Resolution VII of 1950, for the continuation of its study, as 
provided in Article 2, paragraph 2, and in Article 4 of the said 
Resolution ; 

2. That in drafting its definitive report the Inter-American 
Juridical Committee shall also take into account the whereas 
clauses of the present Resolution; 

3. To ask the Secretary General of the Organization of Ameri- 
can States to invite the member States which have adopted, or in 
the future may adopt, special laws on the subject of the "System 
of Territorial Waters and Related Questions", to transmit the texts 
thereof, together with the corresponding geographical charts, to 
the Inter- American Juridical Committee, in order that it may make 
an analytical study thereof and study them in connection with 
the preparation of the report it is to render to this Council of 
Jurists, as provided by Article 4 of Resolution VII. 

(Approved at the Fourth Plenary Session, May 8, 1953) 



242 

Reservation of the United States of America 

The Delegation of the United States of America, in approving 
the Resolution on Territorial Waters and Related Questions, does 
so with an explicit reservation, placing on record : that the United 
States of America does not approve the second paragraph of the 
Considerations which treats, in its opinion, of subject-matter 
properly to be referred to the Inter-American Juridical Committee 
to be dealt with as a matter "relating to the development of inter- 
national law", under Article 2, paragraph 2, and Article 4 of 
Resolution VII adopted in 1950 by the Council of Jurists at its 
First Meeting, articles which in the present Resolution are referred 
to as being applicable, especially in view of the fact that the 
paragraph has not been given scientific or juridical consideration 
by the Second Meeting of the Inter-American Council of Jurists 
and in view of the fact that it affirms as an existing right matter 
which is not clearly defined or settled in international law. 

4. Resolution LXXXIV, "Conservation of Natural Resources: the 
Continental Shelf and Marine Waters", of the Tenth Inter- 
American Conference (Caracas, 1954) 

a. Note. Resolution LXXXIV was approved at the Tenth Inter- American 
Conference (Caracas, 1954). It is printed as Appendix II to Document 2 
(English), Background Material on the Juridical Aspects of the Continental 
Shelf and Marine Waters, at pages 25-26, prepared by the Department of 
International Law of the Pan American Union. Resolution LXXXIV provides, 
inter alia, for the convocation of a Specialized Conference by the Council of 
the Organization of American States "for the purpose of studying as a whole 
the different aspects of the juridical and economic system governing the 
submarine shelf, oceanic waters, and their natural resources * * *." This 
conference was held in Ciudad Trujillo in 1956. Resolutions adopted at Ciudad 
Trujillo appear, infra. 

b. RESOLUTION LXXXIV 

conservation of natural resources: the continental shelf 

and marine waters 

Whereas : 

Progress in scientific research as well as technical progress have 
rendered possible the exploration and utilization of natural re- 
sources (biological, mineral, power, etc.) which exist in the oceanic 
waters, in strata submerged under the sea, and in the subsoil of 
the continental and insular shelf; 

There is a geological continuity and physical unity between the 
insular and continental territory of each state and its respective 
submarine shelf, which forms a geographic unit with the ad- 
joining land; 

It is an obvious fact that technical development concerning the 



243 

means of exploration and exploitation of the wealth of the sub- 
marine shelf and waters of the sea has resulted in the states' 
proclaiming the right to protect, conserve, and develop these 
resources as well as to ensure their use and benefit ; 

It is to the general interest to conserve such wealth and to 
utilize it properly for the benefit of the riparian state, the Con- 
tinent, and the community of nations, as was recognized in the 
Economic Charter of the Americas and Resolution IX adopted at 
the Ninth International Conference of American States, held in 
Bogota in 1948, which called to the attention of the American 
States the fact that the continued depletion of renewable natural 
resources is incompatible with the objective of a higher standard 
of living for the American peoples, since the progressive reduction 
of the potential supply of food and raw materials would eventually 
weaken the economies of the American republics ; and 

It is desirable to promote, in cooperation with all the states of 
the Continent, the development of scientific research in the field 
of oceanography, 

The Tenth Inter- American Conference 

Reaffirms : 

1. The interest of the American States in the national declara- 
tions or legislative acts that proclaim sovereignty, jurisdiction, 
control, or rights to exploitation or surveillance to a certain dis- 
tance from the coast, of the submarine shelf and oceanic waters 
and the natural resources which may exist therein. 

2. That the riparian states have a vital interest in the adoption 
of legal, administrative, and technical measures for the conserva- 
tion and prudent utilization of the natural resources existing in, 
or that may be discovered in, the areas mentioned, for their own 
benefit and that of the Continent and the community of nations ; 
Resolves : 

1. That the Council of the Organization of American States 
shall convoke a Specialized Conference in the year 1955 for the 
purpose of studying as a whole the different aspects of the 
juridical and economic system governing the submarine shelf, 
oceanic waters, and their natural resources in the light of present- 
day scientific knowledge. 

2. That the Council request pertinent inter-American organiza- 
tions to render necessary cooperation in the preparatory work 
that the said Specialized Conference requires ; and 
Recommends: 

To the Council of the Organization of American States the 
study of the possibility of establishing in the Galapagos Islands, 



244 

in agreement with the Government of Ecuador, an Inter- American 
Oceanographic Institute which, in collaboration with other spe- 
cialized organizations, shall give preferential attention to scientific 
research in oceanography in its several fields (geological, his- 
torical, static, dynamic, biological, and economic) with a view to 
obtaining, through the cooperation of all the Member States, a 
better understanding and utilization of the natural resources of 
oceanic waters, submerged strata, and the subsoil. 

5. Resolution XIII, "Principles of Mexico on the Juridical Regime 
of the Sea", With Statements and Reservations Thereto, of 
the Third Meeting of the Inter-American Council of Jurists 
(Mexico City, 1956) 

a. Note. Resolution XIII, which was adopted by a vote of 15 to 1 (the 
United States), purported to be a Preparatory Study for the Specialized 
Conference subsequently held at Ciudad Trujillo, infra. The Statement and 
Reservation of the United States, also reprinted herein, records the grave 
objections which the United States had to this Resolution. Five States did 
not vote. The other Statements appended to Resolution XIII are reprinted 
for their intrinsic interest as well as for their indication of differing views 
despite the apparent overwhelming majority in favor of the Resolution. 
Resolution XIV, a companion Resolution not reprinted here, recommends the 
transmission of Resolution XIII, together with the minutes of the relevant 
meetings, as a Preparatory Study for the Specialized Conference of Ciudad 
Trujillo. Resolution XIII, and the Statements and Reservations thereto, 
reprinted below, are taken from the Final Act of the Third Meeting of the 
Inter-American Council of Jurists as published by the Pan American Union 
in Document CIJ-29 (English) at pages 36-38, and 50-59. 

b. RESOLUTION XIII 

principles of mexico on the juridical regime of the sea 

Whereas : 

The topic "System of Territorial Waters and Related Ques- 
tions : Preparatory Study for the Specialized Inter- American Con- 
ference Provided for in Resolution LXXXIV of the Caracas 
Conference" was included by the Council of the Organization of 
American States on the agenda of this Third Meeting of the 
Inter- American Council of Jurists ; and 

Its conclusions on the subject are to be transmitted to the 
Specialized Conference soon to be held, 

The Inter-American Council of Jurists 

Recognizes as the expression of the juridical conscience of the 
Continent, and as applicable between the American States, the 
following rules, among others ; and 

Declares that the acceptance of these principles does not imply 
and shall not have the effect of renouncing or prejudicing the 



i 



245 

position maintained by the various countries of America on the 
question of how far territorial waters should extend. 

A 

Territorial Waters 

1. The distance of three miles as the limit of territorial waters 
is insufficient, and does not constitute a general rule of inter- 
national law. Therefore, the enlargement of the zone of the sea 
traditionally called "territorial waters" is justifiable. 

2. Each State is competent to establish its territorial waters 
within reasonable limits, taking into account geographical, 
geological, and biological factors, as well as the economic needs 
of its population, and its security and defense. 

B 

Continental Shelf 

The rights of the coastal State with respect to the seabed and 
subsoil of its continental shelf extend also to the natural resources 
found there, such as petroleum, hydrocarbons, mineral substances, 
and all marine, animal, and vegetable species that live in a constant 
physical and biological relationship with the shelf, not excluding 
the benthonic species. 

C 

Conservation of Living Resources of the High Seas 

1. Coastal States have the right to adopt, in accordance with 
scientific and technical principles, measures of conservation and 
supervision necessary for the protection of the living resources 
of the sea contiguous to their coasts, beyond territorial waters. 
Measures taken by a coastal State in such case shall not prejudice 
rights derived from international agreements to which it is a 
party, nor shall they discriminate against foreign fishermen. 

2. Coastal States have, in addition, the right of exclusive ex- 
ploitation of species closely related to the coast, the life of the 
country, or the needs of the coastal population, as in the case of 
species that develop in territorial waters and subsequently migrate 
to the high seas, or when the existence of certain species has an 
important relation to an industry or activity essential to the 
coastal country, or when the latter is carrying out important works 

I that will result in the conservation or increase of the species. 

D 

Base Lines 
1. The breadth of territorial waters shall be measured, in prin- 



246 

ciple, from the low-water line along the coast, as marked on large- 
scale marine charts officially recognized by the coastal State. 

2. Coastal States may draw straight base lines that do not 
follow the low-water line when circumstances require this method 
because the coast is deeply indented or cut into, or because there 
are islands in its immediate vicinity, or when such a method is 
justified by the existence of economic interests peculiar to a 
region of the coastal State. In any of these cases the method may 
be employed of drawing a straight line connecting the outermost 
points of the coast, islands, islets, keys, or reefs. The drawing of 
such base lines must not depart to any appreciable extent from 
the general direction of the coast, and the sea areas lying within 
these lines must be sufficiently linked to the land domain. 

3. Waters located within the base line shall be subject to the 
regime of internal waters. 

4. The coastal State shall give due publicity to the straight 
base lines. 

E 
Bays 

1. A bay is a well-marked indentation whose penetration inland 
in proportion to the width of its mouth is such that its waters 
are inter fauces terrae, constituting something more than a mere 
curvature of the coast. 

2. The line that encloses a bay shall be drawn between its 
natural geographical entrance points where the indentation begins 
to have the configuration of a bay. 

3. Waters comprised within a bay shall be subject to the 
juridical regime of internal waters if the surface thereof is equal 
to or greater than that of a semicircle drawn by using the mouth 
of the bay as a diameter. 

4. If a bay has more than one entrance, this semicircle shall be 
drawn on a line as long as the sum total of the length of the 
different entrances. The area of the islands located within a bay 
shall be included in the total area of the bay. 

5. So-called "historical" bays shall be subject to the regime of 
internal waters of the coastal State or States. 

(Approved at the Fourth Plenary Session, February 3, 1956) 

5j5 J|C *F H* "H H* •!• 

STATEMENTS AND RESERVATIONS 
RESOLUTION XIII 
Statement of Panama 

The Delegation of Panama desires to record its hope that at the 



247 

forthcoming conference of Santo Domingo a formula will be 
achieved that is more conducive to inter- American unity than the 
one reached in the second point of Section A on territorial waters. 
The position of Panama on this point was expressed at the twelfth 
meeting of Committee I. We consider, in brief, that with respect 
to the extent of territorial waters two fundamental interests exist : 
first, that of the coastal State, and second, that of the international 
community. Panama, therefore, believes that the determination of 
territorial waters cannot lie within the discretion of only one of 
those interests, that of the coastal State; and, it hopes therefore 
that the Conference of Santo Domingo will find a formula more 
favorable to the maintenance of a balance between the two 
interests. 

Statement of The Dominican Republic 

The Delegation of the Dominican Republic has abstained from 
voting, as announced, because it believes that the Inter-American 
Council of Jurists has brought into consideration questions that 
have been specifically assigned to the Specialized Conference pro- 
vided for by the Tenth Inter- American Conference of Caracas, in 
Resolution LXXXIV. 

Statement of Cuba 

In the preamble to the resolution an obvious legal contradiction 
is noted. In spite of the fact that it Recognizes that the principles 
contained therein are the "Expression of the juridical conscience 
of the Continent", and are "applicable between the American 
States", the Resolution Declares that "the acceptance of these 
principles does not imply and shall not have the effect of renounc- 
ing or prejudicing the position maintained by the various countries 
of America on the question of how far territorial waters should 
extend". What value or legal effect can a declaration of principles 
have when in the instrument itself it appears that their acceptance 
will not affect the individual position maintained by the various 
parties to the declaration ? 

A 

Territorial Waters 

1. With respect to the traditional principle of the marine league, 
the statement is made, in absolute and categorical terms, that the 
distance of three miles as the limit of territorial waters "is in- 
sufficient", and that "therefore, the enlargement of the zone . . . 
is justifiable". However, the facts do not show that a greater width 
for territorial waters is always justified, that is, in every case, 



248 

since one fourth of the maritime States have not claimed for their 
territorial waters an extent greater than three miles. It would be 
one thing to admit that in certain cases a greater extent is justified, 
but it is quite another to maintain that the limit of three miles is 
insufficient for all States. 

2. On the other hand, the State is authorized to establish (that 
is, to extend) "its territorial waters within reasonable limits, 
taking into account geographical, geological, and biological factors, 
as well as the economic needs of its population, and its security 
and defense". Practically, this is tantamount to claiming that the 
question of the width of territorial waters comes within the 
internal competence of the State, which will decide, on a subjective 
basis, what limit it is "reasonable" to give its territorial waters. 
This ignores the fact that, when considering the appropriation in 
full sovereignty of a maritime zone that heretofore has been a part 
of the high seas, it is not alone the needs and interests of the 
coastal State that are involved. Also involved are the needs and 
interests of the international community and, in particular, those 
of States whose nationals have devoted themselves from time im- 
memorial and without interruption to the exploitation of the zone 
of the high seas affected by the extension of the territorial waters 
of the coastal State. The International Court of Justice, in 
deciding the Anglo-Norwegian Fisheries case (1951), declared 
that the delimitation of territorial waters is not a question that 
falls within the internal and exclusive jurisdiction of the coastal 
State. 

B 

Continental Shelf 

This part of the resolution contains a definition and an ex- 
haustive enumeration of what should be understood by "natural 
resources" of the continental shelf. The Tenth Inter-American 
Conference (Caracas, 1954) requested the Specialized Conference 
to study "as a whole the different aspects of the juridical and 
economic system governing the submarine shelf, oceanic waters, 
and their natural resources in the light of present-day scientific 
knowledge" ; and it requested the pertinent inter-American or- 
ganizations (which would include the Inter-American Council of 
Jurists) to render necessary cooperation in the preparatory work 
that the said Specialized Conference requires. Instead of confining 
itself to declaring the nature of the rights of the coastal State with 
respect to the natural resources of the seabed and the subsoil of 
its continental shelf, the resolution defines and enumerates the 



249 

said resources, thus invading an area of knowledge totally foreign 
to the nature and functions of the Inter-American Council of 
Jurists. What value for the Specialized Conference could scientific 
concepts have that are formulated by a juridical body? 

C 

Conservation of the Living Resources of the High Seas 

1. The resolution recognizes the right of the coastal State to 
adopt the conservation measures necessary for the protection of 
the living resources of the high seas, the only limitations being that 
scientific and technical principles should be followed, that rights 
derived from international agreements to which the coastal State is 
a party may not be prejudiced and that such measures may not 
discriminate against foreign fishermen. On the contrary, the pro- 
posal presented by Cuba and Mexico to the International Technical 
Conference on the Conservation of the Living Resources of the 
Sea (Rome, 1955), and approved by a majority of the countries 
represented at this Meeting of Jurists, established still other 
limitations to the taking of this unilateral action by the coastal 
State. First, that action could only be taken when there was an 
imperative need to conserve such resources, Second, in the event 
of differences between the coastal State and other interested States, 
either as to the scientific and technical justification of the measures 
taken or as to their nature and scope, the proposal stated that 
such differences shall be decided by technical agencies of an inter- 
national character. The proposal also stated that the nature and 
scope of the problems arising at present out of the conservation 
of the living resources of the sea clearly suggest the necessity of 
solving them primarily on the basis of international cooperation, 
through the concerted action of all States concerned. These ideas 
of the proposal were accepted by the International Law Com- 
mission of the United Nations and incorporated in its latest draft 
on the conservation of the living resources of the sea. 

2. The second paragraph of section C of the resolution includes, 
in the idea of "conservation" of the living resources of the high 
seas, the "right of exclusive exploitation" of certain maritime 
species. Exclusive exploitation presupposes a juridical regime 
totally different from that of conservation, as was made perfectly 
clear in our discussions. But aside from this consideration, ex- 
clusive exploitation of the living resources of the sea has, up to 
now, been conceivable only within the territorial waters of the 
State, so that to speak of it in relation to species of the high seas 
pre-supposes the study and knowledge of scientific elements and 



250 

economic factors that have not been studied by the Council, which, 
considering its nature and its necessarily limited functions, is not 
in a position to make such a study. 

In sum, the resolution of the Council presupposes an extension 
of its mandate, which amounts to an encroachment upon the 
assignment given to the Specialized Conference by the Caracas 
Conference. In a certain sense one might arrive at the conclusion 
that that Conference has to a great extent lost its reason for being 
held. This is a situation that will be difficult to understand, but 
much more difficult still will be the fact that a meeting of jurists 
has arrived at conclusions on subjects that are outside the com- 
petence of persons dedicated to the study of law. What objective 
validity can the opinion of the Inter-American Council of Jurists 
have on questions and problems concerning which it lacks scientific 
authority ? This situation is doubly regrettable because of the fact 
that the resolution attempts to incorporate an idea of undeniable 
justice: that of the special interest of the coastal State in the 
exploitation and conservation of the riches of the sea. But in order 
to serve this justified purpose the resolution should have been 
limited to bringing together and expressing concepts and rules 
of the new international law of the sea, which have reconciled 
the recognition and protection of the interest of the coastal state 
with the recognition and protection of the general interest. 

Statement of Colombia 

The Delegation of Colombia has abstained from voting on the 
foregoing resolution for the following reasons : 

First, because taken by itself it does not constitute the pre- 
paratory study requested for the Specialized Conference. 

Second, because its preamble declares that the clauses of the 
resolution are "Applicable Rules" for the American States. 

In accordance with fundamental principles of international law 
and with the constitutional system of the American countries, a 
rule is not applicable and contractually binding except when it is 
contained in a treaty duly approved and ratified. Simple resolu- 
tions cannot have that effect. This is still more evident in the 
present case because the Council of Jurists is a consultative organ. 

The problem is especially serious for a country like Colombia, 
which has no special consitutional or legislative provisions on 
several of the questions referred to in the resolution. Consequently, 
it is not possible to admit that a mere resolution of a consultative 
organ decides questions that must be settled as a matter of sov- 
ereignty, at the proper time, by the competent constitutional or 
legal organs of each State. 



251 

Third, because point A-l confuses two different problems : one 
of law, which is the validity or invalidity of the three-mile limit, 
and the other of fact or mere desirability, which is the insufficiency 
of that limit. Moreover, it is in contradiction to the general system 
established in point A-2. 

Fourth, because point A-2, which establishes the rule that the 
coastal State is competent to establish its territorial waters within 
reasonable limits, taking into account certain circumstances, was 
voted against by the Colombian Delegation, inasmuch as our 
country believes that this matter should be settled by means of 
special or general agreements between States. 

In this respect the Delegation notes with satisfaction that its 
point of view has in fact been rather extensively accepted within 
the Council. Because while point A-2 was approved by 15 affirma- 
tive votes, with 4 opposed and 2 abstentions, three Delegations that 
voted affirmatively, that is, Brazil, Venezuela, and Panama, sub- 
sequently made reservations recording their disagreement with 
the aforesaid point A-2; and the Delegation of Nicaragua made 
partial objections. 

The Delegation of Colombia is in agreement with the provisions 
relative to the continental shelf and the recognition of the rights 
of coastal States to conserve, supervise, and protect the resources 
and riches of the sea. Naturally, it accepts those provisions as a 
statement of principles that the Council recommends, not as rules 
applicable by virtue of the resolution. 

On the other hand, with respect to the resources and riches of 
the sea, the Delegation of Colombia would have wished to exclude 
from the rules certain technical points that should have been left 
for consideration by the Specialized Conference. In this regard, 
the Delegation of Brazil, in its reservation, makes certain concrete 
observations that are worthy of being studied. 

Finally, the Delegation of Colombia calls attention to the fact 
that, at the meeting of Committee I held on February 1, one of its 
members set forth in full the opinions of the Delegation. 

In general the Colombian Delegation does not believe that it 
is desirable to adopt definitive and binding positions until after 
the Specialized Conference of Ciudad Trujillo has taken place, and 
the next General Assembly of the United Nations is held. Any 
prior commitment might prevent those meetings, which do have 
authority in the matter, from the reaching of an agreement that 
would permit the juridical unity of the Continent on territorial 
waters, a unity for which Colombia will always work, faithful to 
its traditional spirit of American solidarity and fraternity. 



252 

Statement of Brazil 

1. The Council of the OAS included topic I-a on the agenda of 
the Third Meeting of the Inter-American Council of Jurists, 
entitled "Territorial Waters and Related Questions", in compli- 
ance with the provisions of Resolution LXXXIV of the Tenth 
Inter- American Conference, so that a preparatory study could be 
made to assist the work of the Specialized Conference that it had 
decided to call. This being the situation, the Delegation of Brazil 
considers that Resolution XIII of the Third Meeting of the Inter- 
American Council of Jurists is not definitive and represents, for 
the most part only a reaffirmation of principles emanating from 
doctrines and actual positions. 

2. With respect to those principles, the Delegation of Brazil, in 
approving the draft resolution, formulates the following specific 
reservations : 

3. As to point A-l, the Delegation of Brazil understands that 
the categorical statement that "the distance of three miles as the 
limit of territorial waters is insufficient" does not correspond to 
present reality in all cases. Moreover, in those cases in which it 
is shown that the width of the territorial waters of a coastal State 
is insufficient for its proper purposes, the recognition of the rights 
and powers of the coastal State over the contiguous zone may 
supplement it satisfactorily. 

4. The Delegation of Brazil is of the opinion that the principle 
laid down in point A-2 places too much emphasis on the individual 
State, without consulting the interests of the international com- 
munity in establishing the limits of the territorial waters of each 
State. The unilateral character of that principle would make it 
impossible to use it in working out a binding international rule, 
nor would it contribute to better relations among States. 

5. With respect to section C of Resolution XIII, the Delegation 
of Brazil desires to point out that, under the general title of 
"Conservation of Living Resources of the High Seas" are included 
matters of a widely varying nature, such as the protection of the 
living resources of the open sea and the exclusive exploitation by 
the coastal State of certain species in which it has a special 
interest. Moreover, the principle stated in point C-l has the same 
unilateral character to which we referred above, and likewise does 
not give proper consideration to the interests of the international 
community. In addition, the reservation at the end of paragraph 
C-l is in conflict with the provision of point C-2, which reserves 
to the coastal State the exclusive right of exploitation of certain 
species, a rule that suffers from the same defects here pointed out. 



253 

With respect to such points, the Delegation of Brazil considers that 
the problem is essentially of an international nature, and that, 
therefore, the conciliation of divergent interests should be the 
object of agreements, or should be entrusted to proper inter- 
national agencies. 

6. The Delegation of Brazil is completely in agreement with the 
principle announced in section B, inasmuch as it recognizes as a 
rule of customary international law that the continental shelf is 
a part of the territory of the State to which it corresponds. Taking 
this view, the Brazilian Government has already determined that 
the Federal Union exercises rights of exclusive jurisdiction and 
dominion over the Brazilian continental shelf, reserving for itself 
also the exploitation and exploration of the natural wealth of its 
soil and subsoil. With regard to the waters that cover the shelf, 
the Brazil Government decided to continue in force the rules gov- 
erning navigation, without prejudice to any rules that may later 
be established in that field, especially with reference to fishing. 

Statement of Bolivia 

Bolivia, a country that has been deprived of its maritime coast 
for 77 years, abstains, in harmony with its votes at previous inter- 
national meetings, particularly at the Tenth Inter-American Con- 
ference of Caracas, from voting on questions having to do with 
the juridical regime of territorial waters, until such time as 
considerations of high international justice and the demands of 
inter-American understanding and good relations bring about an 
end to its land-locked situation. 

Statement of Honduras 

The Delegation of Honduras repeats its official position on the 
topic "System of Territorial Waters and Related Questions", 
recorded in its statement of January 28, which appears in the 
minutes of the eleventh meeting of Committee I. 

Statement of Venezuela 

The Delegation of Venezuela wishes to place on record that it 
has voted affirmatively on the Resolution on Territorial Waters 
and Related Questions in the sense that it establishes a basis for 
study by the Inter- American Specialized Conference ; and in view 
of the fact that it states fundamental principles with which 
Venezuela is in agreement. The Delegation believes that upon being 
analyzed at that Conference these matters should be given special 
consideration. 

This affirmative vote does not mean that the Delegation adheres 



254 

without qualification to the text of the resolution as it is written, 
and it implies only, as has been pointed out, the recognition of 
some of the principles announced. 

With respect to territorial waters, it considers that the States 
have the right to extend them to reasonable limits, taking into 
account, besides the factors that have been mentioned, the prin- 
ciples that are at present recognized by international law and 
those that may be established in the future. 

Also, Venezuela reaffirms the authority and jurisdiction that it 
exercises over the soil and subsoil of its continental shelf, and 
the right that it has to the conservation and exploitation of the 
natural resources there. 

Statement of Guatemala 

The Delegation of Guatemala, considering that Article 2 of 
Section D and Section E on Bays deserve greater and more detailed 
analysis, as well as due consideration of the applicable regimes, 
abstains from approving them, and states that the historic 
Bay of "Amatique" is subject to the exclusive sovereignty of 
Guatemala. 

Statement and Reservation of the United States of America 

For the reasons stated by the United States Representative 
during the sessions of Committee I, the United States voted against 
and records its opposition to the Resolution on Territorial Waters 
and Related Questions. Among the reasons indicated were the 
following : 

That the Inter-American Council of Jurists has not had the 
benefit of the necessary preparatory studies on the part of its 
Permanent Committee which it has consistently recognized as 
indispensable to the formulation of sound conclusions on the 
subject; 

That at this Meeting of the Council of Jurists, apart from a 
series of general statements by representatives of various coun- 
tries, there has been virtually no study, analysis, or discussion of 
the substantive aspects of the Resolution ; 

That the Resolution contains pronouncements based on economic 
and scientific assumptions for which no support has been offered 
and which are debatable and which, in any event, cover matters 
within the competence of the Specialized Conference called for 
under Resolution LXXXIV of the Tenth Inter-American Con- 
ference ; 

That much of the Resolution is contrary to international law; 



255 

That the Resolution is completely oblivious of the interests and 
rights of States other than the adjacent coastal States in the con- 
servation and utilization of marine resources and of the recognized 
need for international cooperation for the effective accomplishment 
of that common objective ; and 

That the Resolution is clearly designed to serve political purposes 
and therefore exceeds the competence of the Council of Jurists 
as a technical- juridical body. 

In addition, the United States Delegation wishes to record the 
fact that when the Resolution, in the drafting of which the United 
States had no part, was submitted to Committee I, despite funda- 
mental considerations raised by the United States and other dele- 
gations against the Resolution, there was no discussion of those 
considerations at the one and only session of the Committee held 
to debate the document. 

Statement of Nicaragua 

The Delegation of Nicaragua desires to place on record that its 
abstention from voting on the Draft Resolution on the System of 
Territorial Waters and Related Questions, approved at the Third 
Meeting of the Inter-American Council of Jurists, was based on 
this Delegation's view that first consideration should be given to 
the conclusions that might be reached by the Specialized Con- 
ference of Ciudad Trujillo on the technical aspects and economic 
needs with respect to territorial waters and related questions, 
in order to make it possible to formulate juridical principles that 
would harmonize the different tendencies that might eventually 
constitute a rule of international law unanimously accepted 
throughout the Continent. 

6. Resolution I, "Resolution of Ciudad Trujillo", with Statements 
of the Delegations Appended Thereto, of the Inter-American 
Specialized Conference on "Conservation of Natural Resources : 
the Continental Shelf and Marine Waters" (Ciudad Trujillo, 
1956) 

a. Note. The Resolution of Ciudad Trujillo, the latest Inter- American 
expression on the subject, is the most realistic in recording the lack of 
agreement that prevails. The appended Statements are reprinted also because 
of their value as a cross section of Inter- American opinion. The Resolution 
and the Statements are taken from the Final Act of Ciudad Trujillo, 
Conference and Organization Series No. 50, published by the Pan American 
Union, 1956. 



256 

b. RESOLUTION I 

RESOLUTION OF CIUDAD TRUJILLO 

The Inter-American Specialized Conference on "Conservation 
of Natural Resources : The Continental Shelf and Marine Waters", 

Considering : 

That the Council of the Organization of American States, in 
fulfillment of Resolution LXXXIV of the Tenth Inter-American 
Conference held in Caracas in March 1954, convoked this Inter- 
American Specialized Conference "for the purpose of studying as 
a whole the different aspects of the juridical and economic system 
governing the submarine shelf, oceanic waters, and their natural 
resources in the light of present-day scientific knowledge" ; and 

That the Conference has carried out the comprehensive study 
that was assigned to it, 

Resolves : 

To submit for consideration by the American states the follow- 
ing conclusions : 

1. The sea-bed and subsoil of the continental shelf, continental 
and insular terrace, or other submarine areas, adjacent to the 
coastal state, outside the area of the territorial sea, and to a depth 
of 200 meters or, beyond that limit, to where the depth of the 
superjacent waters admits of the exploitation of the natural re- 
sources of the sea-bed and subsoil, appertain exclusively to that 
state and are subject to its jurisdiction and control. 

2. Agreement does not exist among the states here represented 
with respect to the juridical regime of the waters which cover the 
said submarine areas, nor with respect to the problem of whether 
certain living resources belong to the sea-bed or to the superjacent 
waters. 

3. Cooperation among states is of the utmost desirability to 
achieve the optimum sustainable yield of the living resources of 
the high seas, bearing in mind the continued productivity of all 
species. 

4. Cooperation in the conservation of the living resources of 
the high seas may be achieved most effectively through agreements 
among the states directly interested in such resources. 

5. In any event, the coastal state has a special interest in the 
continued productivity of the living resources of the high seas 
adjacent to its territorial sea. 

6. Agreement does not exist among the states represented at 
this Conference either with respect to the nature and scope of the 



257 

special interest of the coastal state, or as to how the economic and 
social factors which such state or other interested states may 
invoke should be taken into account in evaluating the purposes of 
conservation programs. 

7. There exists a diversity of positions among the states 
represented at this Conference with respect to the breadth of the 
territorial sea. 

— II — 

Therefore, this Conference does not express an opinion con- 
cerning the positions of the various participating states on the 
matters on which agreement has not been reached and 

Recommends: 

That the American states continue diligently with the considera- 
tion of the matters referred to in paragraphs 2, 6, and 7 of this 
resolution with a view to reaching adequate solutions. 

******* 

Statements of the Delegations 

Brazil 

The Delegation of Brazil understands that the conclusions and 
the recommendation resulting from the over-all study made by 
the Conference, which are contained in the "Resolution of Ciudad 
Trujillo", do not forejudge the nature of the common solutions 
the American states and the international community should find 
for the questions mentioned therein. 

Mexico 

Statement prepared by the Delegation of Mexico with respect to 
the "Resolution of Ciudad Trujillo", to set forth the position of 
Mexico, and also the interpretation and the scope that the afore- 
said delegation gives to the contents of that document, concerning 
the matters on which there has been disagreement : 

1. There is no general rule in international law setting the 
extent of the territorial sea. 

2. Each state has the right to set the extent of its territorial 
sea within reasonable limits, taking into consideration both the 
pertinent geographical, geological, biological, economic, and social 
factors, and the needs of security and defense. 

3. The foregoing principle makes it possible to determine the 
juridical regime of the waters superjacent to the continental shelf. 

4. The rights of the coastal state over the continental shelf 
extend to all animal and vegetable species that live in a constant 



258 

relationship of physical and biological dependence with the shelf. 

5. The coastal state has the right, if no agreement exists 
between the states concerned, to adopt the conservation and sur- 
veillance measures necessary for the protection of the living 
resources of the high seas adjacent to its coasts, on the basis of 
scientific data and applicable technical standards. The state will 
not act in such cases in an arbitrary or discriminatory manner. 

6. The coastal state has, in specific cases, the right to the 
exclusive exploitation of the species closely related to the coast, 
to the life of the country, or to the needs of the coastal population. 

The Delegation of Mexico likewise states that, since the Confer- 
ence did not go on record with respect to the positions of the 
various participating states on the matters on which an agreement 
was not reached, the position of Mexico has not been in any way 
affected, and every aspect of that position remains unchanged, in 
all its force and integrity, as has been stated unilaterally, col- 
lectively, or in resolutions of inter-American organs, especially in 
Resolution XIII in the Final Act of the Third Meeting of the 
Inter- American Council of Jurists, entitled "Principles of Mexico 
on the Juridical Regime of the Sea". 

Costa Rica, Chile, Ecuador, and Peru 

The Delegations of Costa Rica, Chile, Ecuador, and Peru declare 
that they have voted affirmatively on the resolutions, agreements, 
and recommendations adopted at this Conference in the under- 
standing that they do not alter in any way whatsoever their con- 
stitutional provisions, their national legislation, the agreements to 
which they are parties, or other collective international instru- 
ments they have approved. 

Guatemala 

The Delegation of Guatemala desires to insert in the record 
that the rights recognized in the "Resolution of Ciudad Trujillo" 
as appertaining to the coastal states include, with respect to 
Guatemala, the whole territory of British Honduras. 

El Salvador 

The Delegation of El Salvador has voted affirmatively on the 
"Resolution of Ciudad Trujillo" because this document does not 
prejudice the rights of El Salvador to the continental terrace 
adjacent to its coast and to its territorial sea, which, as is well 
known, extends to a distance of 200 nautical miles measured from 
the low-water line, without thereby affecting the freedom of 
navigation in accordance with the principles accepted by inter- 



259 

national law, as expressly stated in Article 7 of its Constitution. 

Although it is not explicitly stated in the resolution, it is implicit 
in the first of its conclusions that the portion of the continental 
shelf or continental terrace covered by the territorial sea of a 
state forms part of its territory and is subject to the juridical 
regime of that territorial sea. With that understanding, the 
Delegation of El Salvador accepts paragraph 1 of the document 
as referring to the sea-bed and the subsoil of the continental shelf, 
continental and insular terrace, or other submarine areas adjacent 
to the coastal state, outside the area of the territorial sea. 

In the opinion of the Delegation of El Salvador, when the afore- 
said paragraph 1 states that the sea-bed and subsoil of the con- 
tinental shelf, continental and insular terrace, or other submarine 
areas appertain exclusively to the coastal state and are subject to 
its jurisdiction and control, the sovereignty of the state over such 
submarine areas is recognized, because the delegation understands 
that the exclusive proprietorship of such areas, together with the 
right to exercise jurisdiction and control thereover, make up 
without any question the concept of sovereignty — in other words, 
because the delegation cannot conceive those elements to be 
compatible with the exercise of an alien sovereignty. 

With respect to natural resources, the position of El Salvador 
is the same as the one it maintained in Mexico, namely, that the 
rights of the coastal state, with respect to the sea-bed and subsoil 
of the continental shelf or continental terrace appertaining to it, 
extend also to the natural resources found there, such as petroleum, 
hydrocarbons, mineral substances, and all the marine species, 
animal and vegetable, that live in a constant physical and biological 
relationship with the shelf, not excluding the benthonic species. 

El Salvador maintains its constitutional provision of 200 miles 
of territorial waters, without claiming thereby that the same 
extent should be adopted by all the American states, since, accord- 
ing to the principle recognized in Mexico, each state is competent 
to establish its' territorial waters within reasonable limits, taking 
into account geographical, geological, and biological factors, as 
well as the economic needs of its population and its security and 
defense. 

In Part II, the resolution states that no opinion has been 
expressed concerning the positions of the various states participat- 
ing in this Conference on the matters on which agreement has not 
been reached. These positions may be either individual or collective. 

The Delegation of El Salvador, in voting for this resolution, did 
so in view of the fact that it represents the minimum area of 
agreement among all the American states on these problems, but 



260 

does not alter the individual or collective positions adopted by some 
of the states with respect to such problems. 

Colombia 

Colombia has been maintaining that the problems related to 
marine waters and the continental shelf should be subject to an 
agreement between the American states. This endeavor is not 
impossible, for if in other very difficult matters, such as that of 
nonintervention, the American states succeeded in overcoming 
their differences and so uniting their opinion that today no one 
discusses or objects to the matter, there is no reason why a similar 
understanding may not be reached in matters relating to marine 
spaces. For this reason, Colombia has refrained, of late, from 
adopting unilateral regulations, in the belief that they could wait 
until a common American solution was found. This is also why 
Colombia thought that this Conference would thoroughly study 
the aforementioned matters, in order to approve conclusions which 
would prove satisfactory to all the Continent. 

In the praiseworthy desire to bring about a rapprochement 
among the various theses held by the American countries and to 
establish with precision what we might call areas of agreement 
and disagreement, the system of meetings of chairman of dele- 
gations was adopted. Under these circumstances, which did not 
make it possible to consider the proposals clause by clause, or to 
introduce others, the Delegation of Colombia refrained from 
suggesting several juridical formulas that it had studied. 

Of course, Colombia accepts the "Resolution of Ciudad Trujillo", 
which is in accordance with the purpose of seeking and reaching 
unanimous solutions, points out with great pleasure the noble 
spirit of understanding that prevailed at the Conference, and 
emphasizes the importance of the policies adopted with respect to 
the continental shelf, international cooperation, and the special 
interest of the coastal state in the continuing productivity of the 
living resources of the high seas. 

At the same time, the Delegation of Colombia expresses its 
sincere hope that the studies dealt with in the final part of the 
resolution will be continued as soon as possible. Perhaps the 
Council of the Organization of American States, on taking 
cognizance of this Final Act, might suggest a suitable way to 
have such studies made. 

The Delegation of Colombia also notes that prompt agreement 
on certain topics that there was no opportunity to study might be 
reached later. Thus, for example, the adoption of standards for 
the delimitation of the continental shelves of neighboring states 



261 

does not appear to present insurmountable obstacles. Moreover, 
such standards would be highly beneficial, since they would prevent 
future controversies that might disturb inter- American relations, 
just as matters concerning land boundaries have disturbed them 
in the past. Likewise, the matter of the breadth of the territorial 
sea might be studied from new points of view. In this respect one 
might consider the study of systems that, disregarding that idea, 
would be directed toward protecting marine wealth, especially 
fisheries. The establishment of a wide area contiguous to the 
territorial sea, where the rights of the coastal state to regulate 
fishing without arbitrary discrimination would be recognized, 
might be one of such systems. By means of this method, the coastal 
state would be effectively protected, without having to link this 
protection to rules on the breadth of the territorial sea. 

In view of the fact that a general agreement among the Ameri- 
can states on all these problems may be delayed too long, Colombia 
will consider whether or not it is advisable to change its attitude 
of prudent waiting, and issue its own regulations on certain 
matters. Naturally, in so doing, if it should do so, it would not fail 
to bear in mind the conclusions of this Conference. 

United States of America 

In view of certain statements made by other delegations at the 
final plenary session of this Conference on March 27, or inserted 
in this Final Act, the Delegation of the United States of America 
wishes to record the following statements : 

(a) The Government of the United States does not recognize 
a right on the part of a coastal state, as claimed by certain 
delegations, to exclusive control over the resources of the high 
seas. The United States maintains that, in accordance with inter- 
national law, fishery regulations adopted by one state cannot be 
imposed on nationals of other states on the high seas except by 
agreement of the governments concerned. Moreover, the United 
States Delegation also wishes to record the fact that it made a 
specific proposal for the Conference which would, if adopted, 
effectively meet the conservation problem that would be posed in 
the event of failure of the interested states, including the coastal 
state, to reach agreement on the need for and application of 
conservation measures. 

(b) The Government of the United States does not recognize 
that a state has competence to determine the breadth of its 
territorial sea apart from international law. 

(c) The Delegation of the United States also wishes to call 
attention to the fact that broader consideration having been given 



262 

at this Conference than at any previous inter-American meeting 
to the various aspects of the subjects on its agenda, the present 
"Resolution of Ciudad Trujillo" constitutes the latest and most 
authoritative expression of the Organization of American States 
on the subjects discussed therein. 

Cuba 

The Delegation of Cuba has voted affirmatively on the Resolution 
[of Ciudad Trujillo] approved by the Conference for the following 
reasons : 

1. The resolution recognizes the jurisdiction and control of 
the coastal state over the sea-bed and the subsoil of the continental 
shelf, the continental and insular terrace, and other submarine 
areas adjacent to that state beyond the limit of its territorial sea. 
In this sense, the resolution contains a principle of contemporary 
international law. Nevertheless, the recognition of this right does 
not in anyway affect the status of high seas that the waters cover- 
ing the sea-bed and subsoil of such submarine areas have and 
preserve. Likewise, the resolution does not forejudge whether 
specific living resources belong to the sea-bed or to the superjacent 
waters. In the opinion of the Delegation of Cuba, which coincides 
with that of the International Law Commission of the United 
Nations, the living resources that do not come under the classifica- 
tion of sedentary or fixed (sessile) fisheries, belong to the super- 
jacent waters and are subject to the juridical regime of the latter. 

2. In the matter of the conservation of the living resources 
of the high seas, the resolution reaffirms the principle that 
international cooperation is the standard or most appropriate 
means of achieving the purposes of conservation. The resolution 
expresses the disagreement that arose at the Conference with 
respect to the nature and scope of the special interest of the coastal 
state. In this respect, the Delegation of Cuba also shares, in 
principle, the concepts and rules contained in the draft text on 
the subject approved by the International Law Commission during 
its Seventh Session (1955), as stated in detail in the course of 
its deliberations. 

3. The resolution also expresses the existing disagreement 
among the American states as regards the breadth of the ter- 
ritorial sea. In this respect, the Delegation of Cuba, in accordance 
with the opinion it has consistently upheld at all previous con- 
ferences, maintains that the question of the breadth and delimita- 
tion of the territorial sea is subject to the limitations of inter- 
national law, and that it is not, therefore, a matter coming within 
the exclusive competence of the coastal state, as was declared by 



263 

the International Court of Justice in the recent Anglo-Norwegian 
case on fisheries. Among these limitations there is one that the 
Delegation of Cuba considers to be fundamental : that any exten- 
sion of the territorial sea beyond the traditional limit, may not 
affect in any way whatsoever the historic fishing rights acquired 
by nationals of a third state, who uninterruptedly, from time 
immemorial, have devoted their lives to this activity in the area 
of the high seas that such an extension covers. 

4. Finally, part II of the resolution, which has been the 
subject of interpretation by certain delegations, does not, in the 
opinion of the Delegation of Cuba, pose a problem of this kind. In 
effect, this part of the resolution does no more than state, in 
unequivocal and very precise words, that the first time that the 
American states have studied the problems relating to the utiliza- 
tion and conservation of the wealth of the sea, with a view to 
establishing an appropriate juridical regime — that is, in the light 
of all the scientific, technical, and economic factors involved, as 
charged by the Caracas Conference — they have expressly recog- 
nized the existence of disagreement with respect to paragraphs 
2, 6, and 7 of the resolution, and that, because of that fact, they 
recommend that the study of such matters be continued with a 
view to reaching adequate solutions. 

Panama 

The Delegation of Panama, imbued with a high inter- American 
spirit, and without reservations, has taken an active part in the 
many informal meetings held to draft the document on the 
continental shelf and continental terrace, the living resources of 
the sea, and marine waters that we have just approved, a 
document that, as can be readily seen, is, with some important 
changes, the draft originally presented by the United States for 
consideration by our governments. 

The Delegation of Panama believes that the unanimous approval 
of this instrument is a constructive step toward the affirmation 
of continental unity. We have arrived at affirmative formulas on 
the few points on which there was unanimous agreement, and 
we have postponed the solution of other matters with the frank 
recognition that there is a diversity of opinion or of interests that 
at present makes agreement without dissent impossible. This 
result is characteristic of the inter- American system, founded on 
respect for the opinion of each and every one of the Member 
States of our great regional community. 

The Delegation of Panama hopes that our governments and 
peoples represented here will find in the near future suitable 



264 

solutions to the matters that they should continue to study until 
formulas that can be accepted unanimously are reached. To 
realize this aspiration, we count on the spirit of continental unity 
that inspires us all and on the full knowledge of the position of 
every American state on these matters, which has been at least 
one result of recent inter-American conferences or meetings. 

Uruguay 

The Delegation of Uruguay approves the "Resolution of Ciudad 
Trujillo" with the understanding that "the positions of the various 
participating states" upon which the Conference has not expressed 
an opinion, and those to which part II (1) refers, include both 
the positions taken by our delegation during this Conference and 
those that our country has maintained or may maintain before 
or after it. 

Venezuela 

At the beginning of this Conference, the Delegation of 
Venezuela issued a statement containing its points of view with 
respect to the topics on the agenda of this transcendental meeting 
of representatives of the American states. It was clearly stated 
therein that in taking part in the deliberations on the topics that 
were to be studied, Venezuela would be guided by a broad spirit 
of cooperation. Now that the Conference is coming to a close, the 
Delegation of Venezuela is pleased to affirm that it has never 
changed its conciliatory sentiments, which, moreover, were clearly 
and expressively displayed by the other delegations. In voting for 
the resolution, happily entitled "Resolution of Ciudad Trujillo", 
Venezuela understands that the particular interests of the states 
were reconciled in the interest of continental harmony; but this 
fact does not entail the abolition of the basic principles of sov- 
ereignty or forejudge in any way the criterion that might prevail 
in the solution of the points on which there has been no agreement 
as yet. 

D. Chile-Ecuador-Peru Agreements, 1952—1955 

1. Introductory Note. These Agreements are so closely related to the 
Inter- American documents printed in the previous section that they are 
placed here for convenience of reference. The Agreements, insofar as they 
involve claims to a maritime zone, should be compared with the national 
claims printed infra. So far as the Agreements purport to deal with con- 
servation of fisheries, they should be compared with the conservation 
agreements printed in the section immediately following. 

In September-October of 1955, negotiations took place in Santiago, Chile, 
on fishery conservation problems of this area between the United States 
and Chile-Ecuador-Peru. No agreement was reached. The history of the 



265 

negotiations, documents presented, and the Final Communique are printed in 
Santiago Negotiations on Fishery Conservation Problems, unnumbered State 
Department publication (1955). The history of the negotiations included 
therein is taken from 33 Department of State Bulletin, p. 1025 (Decem- 
ber 1955). According to this account, the negotiations broke down be- 
cause of basic legal differences over the Chile-Ecuador-Peru claim to a 200 
mile maritime zone. On May 13, 1955, the United States presented a note to 
the three countries proposing that the legal dispute should be referred to the 
International Court of Justice, and also proposing that negotiations on a 
fishery conservation agreement should be undertaken. In replying on June 3, 
1955, the three countries stated they were not then prepared to consider 
submission of the legal controversy to the International Court, but were 
willing to enter into negotiations. The United States replied on July 9, 1955, 
agreeing to negotiations, and the Santiago Conference was the result. These 
Notes are not now available for publication. The summary of them given in 
the history of the negotiations makes clear that the United States has not 
acquiesced in these claims. Furthermore, as indicated in the section on 
National Claims, infra, Section VI, the United States has also protested 
against the individual claims to 200 miles made by Chile and Peru, as has 
the United Kingdom. Both the United States and the United Kingdom have 
also made protests to Ecuador on her national legislation. 

It has been recently reported that the new President of Peru has accepted 
the proposal of Secretary of State Dulles that a South Pacific fisheries 
agreement be signed with the United States and other countries, and that 
in the agreement Peru would drop her 200 mile claim. The New York Times, 28 
July 1956, Section I, Page 22, Cols 3-4. The agreement will be modeled after 
the North Pacific Fisheries Agreement, infra. Any such agreement would 
require the concurrence of Chile and Ecuador in view of the provisions in 
their agreements calling for a common position. The dispatch reports also 
that only the fleets of the signatory states will be permitted to fish in the 
South Pacific region subject to conservation restrictions. More recently, 
however, the three countries have reaffirmed their original position at fifth 
meeting of their permanent commissions. Costa Rica attended as an ob- 
server. The New York Times, 4 October 1957, page 45, col. 6. 

2. Agreements * Between Chile, Ecuador and Peru Signed at the 
First Conference on the Exploitation and Conservation of the 
Maritime Resources of the South Pacific, Santiago, 18 August 
1952 



a. DECLARATION ON THE MARITIME ZONE 2 

1. Governments are bound to ensure for their peoples access 
to necessary food supplies and to furnish them with the means 
of developing their economy. 



1 Ratified by all the signatory States. According to the Final Act of the 
Third Meeting (Quito), infra, Costa Rica has adhered to the Declaration on 
the Maritime Zone. 

2 Revista Peruana de Derecho Internacional, tomo XIV, No. 45, 1954, pp. 
104 et seq. Translation by the Secretariat of the United Nations. 



266 

2. It is therefore the duty of each Government to ensure the 
conservation and protection of its natural resources and to 
regulate the use thereof to the greatest possible advantage of 
its country. 

3. Hence it is likewise the duty of each Government to prevent 
the said resources from being used outside the area of its juris- 
diction so as to endanger their existence, integrity and conserva- 
tion to the prejudice of peoples so situated geographically that 
their seas are irreplaceable sources of essential food and economic 
materials. 

For the foregoing reasons the Governments of Chile, Ecuador 
and Peru, being resolved to preserve for and make available to 
their respective peoples the natural resources of the areas of sea 
adjacent to their coasts, hereby declare as follows: 

(I) Owing to the geological and biological factors affecting 
the existence, conservation and development of the marine fauna 
and flora of the waters adjacent to the coasts of the declarant 
countries, the former extent of the territorial sea and contiguous 
zone is insufficient to permit of the conservation, development and 
use of those resources, to which the coastal countries are entitled. 

(II) The Governments of Chile, Ecuador and Peru therefore 
proclaim as a principle of their international maritime policy that 
each of them possesses sole sovereignty and jurisdiction over the 
area of sea adjacent to the coast of its own country and extending 
not less than 200 nautical miles from the said coast. 

(III) Their sole jurisdiction and sovereignty over the zone 
thus described includes sole sovereignty and jurisdiction over the 
sea floor and subsoil thereof. 

(IV) The zone of 200 nautical miles shall extend in every 
direction from any island or group of islands forming part of the 
territory of a declarant country. The maritime zone of an island 
or group of islands belonging to one declarant country and situated 
less than 200 nautical miles from the general maritime zone of 
another declarant country shall be bounded by the parallel of 
latitude drawn from the point at which the land frontier between 
the two countries reaches the sea. 

(V) This Declaration shall not be construed as disregarding 
the necessary restrictions on the exercise of sovereignty and 
jurisdiction imposed by international law to permit the innocent 
and inoffensive passage of vessels of all nations through the zone 
aforesaid. 

(VI) The Governments of Chile, Ecuador and Peru state that 
they intend to sign agreements or conventions to put into effect 



267 

the principles set forth in this Declaration and to establish general 
regulations for the control and protection of hunting and fishing 
in their respective maritime zones and the control and coordination 
of the use and working of all other natural products or resources 
of common interest present in the said waters. 

* $ % * $ H* sfc 

b. ORGANIZATION OF THE STANDING COMMITTEE OF THE CONFER- 
ENCE ON THE USE AND CONSERVATION OF THE MARINE RESOURCES 
OF THE SOUTH PACIFIC 3 

(1) To achieve the objects set forth in the Declaration of the 
Maritime Zone signed at this First Conference on the Use and 
Conservation of the Marine Resources of the South Pacific, the 
Governments of Chile, Ecuador and Peru agree to establish a 
Standing Committee composed of not more than three representa- 
tives of each. The Committee shall hold one ordinary meeting a 
year and any of the Governments may also convene special 
meetings. 

The Standing Committtee shall meet in accordance with a system 
of annual rotation, under a chairman appointed by the host 
Government. 

(2) The Standing Committee shall establish Technical Offices to 
coordinate all action by the Parties in pursuance of the aims and 
objects of the Conference. These Offices shall not frame policy 
but shall merely assemble administrative, industrial, scientific, 
economic and statistical information relating to the objects of the 
Conference and circulate the same to the Parties in order to keep 
them duly and promptly informed. They shall likewise act as 
Secretariats of the Standing Committee. 

(3) The Standing Committee shall carry out studies and adopt 
resolutions as hereinafter indicated with a view to the conservation 
and improved use of marine fauna and other resources, having 
regard to the interests of each contracting country. 

The Standing Committee shall, with a view to the conservation 
of marine resources, standardize the regulations governing the 
hunting and fishing of common marine species of the contracting 
countries, and for this purpose shall have power — 

(a) to determine protected species; open and closed seasons 
and areas of sea ; fishing and hunting times, methods and equip- 
ment ; and prohibited gear and methods ; and to lay down general 
regulations for hunting and fishing; 

(b) to study and propose to the Parties such measures as 



3 Revista Peruana de Derecho International, tomo XIV, No. 45, 1954, pp. 
105 et seq. Translation by the Secretariat of the United Nations, 



268 

it considers suitable for the protection, defence, conservation and 
use of marine resources ; 

(c) to encourage scientific and technical study of and research 
into biological phenomena in the South Pacific ; 

(d) to prepare general statistics of the industrial use of 
marine resources by the Parties, and to suggest protective meas- 
ures based on the study thereof ; 

(e) to deal with requests for advice on the protective meas- 
ures based on study of the said statistics ; 

(f) to prepare the agenda and propose dates and sites for 
future plenary meetings of the Conference ; 

(g) to exchange scientific and technical information with 
other international or private organizations concerned with the 
study and protection of marine resources ; 

(h) to ensure that the fishing and hunting quotas fixed 
annually by each Party in the exericse of its exclusive rights do 
not endanger the preservation of the marine resources of the 
South Pacific; 

(i) to settle all questions relating to its own operation, the 
organization of the Secretariats and Technical Offices, and pro- 
cedural matters in general. 

(4) Every resolution adopted by the Standing Committee shall 
have mandatory effect forthwith in each signatory State ; provided 
that a resolution to which a signatory State lodges an objection 
within ninety days shall cease to have effect in that State until 
the objection has been withdrawn. In computing the said period 
of ninety days, a Government shall be deemed to have been notified 
of a resolution on the date of its adoption solely by the assent of 
that Government's representatives thereto. If the representatives 
of a country are not present, notice of an agreement shall be given 
in writing to the diplomatic representative of that country 
accredited to the country in which the Committee is sitting. 

(5) The signatory Governments shall enforce the agreements 
of the Conference and the resolutions of the Standing Committee 
by imposing a system of legal penalties for breaches thereof 
committed within their jurisdiction. In the absence of appropriate 
statutory penalties they shall request the competent authorities 
to establish the same. 

Notice of the imposition of any penalty under this provision 
shall be given to the Standing Committee through the competent 
Technical Office referred to in paragraph (2). Technical Offices 
shall keep complete and detailed registers of all charges and 
penalties, 



269 

(6) Any Party may denounce this agreement by giving one full 

calendar year's notice of denunciation to the other Parties. 
******* 

c. JOINT DECLARATION ON FISHERY PROBLEMS IN THE SOUTH 

PACIFIC 4 

The representatives of Chile, Ecuador and Peru to the First 
Conference on the Use and Conservation of the Marine Resources 
of the South Pacific, 

Considering : 

That the Governments of Chile, Ecuador and Peru are concerned 
at the danger caused by lack of protection to the conservation of 
fishery resources in the maritime zones under their jurisdiction 
and sovereignty ; 

That because of the progressive development of new methods 
and techniques, large areas of their waters are being fished more 
intensively, and that some fishery resources highly important to 
the food supply and irreplaceable as sources of industrial materials 
are in serious danger of exhaustion ; 

That the principal species of South Pacific fauna periodically 
migrate and appear at certain seasons off the western coast of 
South America ; 

That there is a need to establish and apply measures of pro- 
tection and conservation with a view to the improvement of yield, 
to the advantage of the national food supply and economies of 
the signatory States ; 

That it is necessary to standardize fishery legislation, to regulate 
or prohibit the use of certain destructive forms and methods of 
fishing, and in general to establish practices conducing to the 
rational use of joint marine resources ; 

Hereby agree as follows: 

(1) To recommend the Governments here represented to estab- 
lish on their coasts and ocean islands such marine biological 
stations as may be necessary for the study of the migration and 
reproduction of the species of greatest nutritive value, in order 
to prevent reduction of the stocks thereof; 

(2) To coordinate national and international scientific research 
and to enlist the cooperation of fishery organizations with similar 
objects ; 

(3) To recommend the enactment of such regulations as may 
be necessary for the conservation of fishery resources in the 
maritime zones under their jurisdiction; 



4 Revista Peruana de Derecho Inter -national, tomo XIV, No. 45, 1954, pp. 
107 et seq. Translation by the Secretariat of the United Nations, 



270 

(4) To recommend to the signatory Governments that licenses 
to fish in their maritime zones should be issued only for such 
fishing as does not impair the conservation of the species covered 
by the license and is intended to provide fish for domestic con- 
sumption or raw materials for domestic industry. 

d. regulations governing whaling in the waters of the 

south pacific 5 

Whereas 

The representatives of Chile, Ecuador and Peru attending the 
First Conference on the Utilization and Conservation of the 
Marine Resources of the South Pacific are convinced of the urgent 
need to regulate whaling forthwith, 

And WHEREAS 

It is the duty of each Government to ensure the conservation 
and protection of the stock of whales existing in the area of the 
South Pacific; 

It is necessary to regulate the hunting of the said whales so 
as to prevent such intensive operations as might lead to the 
temporary or permanent extinction of that animal species, with 
consequent injury to the economies of the countries of the South 
Pacific ; 

The carrying on of this industry through land stations implies 
per se a restriction on whale-hunting owing to the immobility of 
such stations and to the limited radius of action of whale catchers ; 

Land stations carry on whaling operations more efficiently than 
factory ships, for, in addition to the fats, such stations also utilize 
the meat and bones of whales for the purpose of producing food- 
stuffs for human beings and animals ; 

NOW THEREFORE THE SAID REPRESENTATIVES HEREBY AGREE: 

To constitute themselves a Provisional Standing Committee, 
and in that capacity make the following Regulations governing 
whaling : 

Article 1. Whaling in the South Pacific, and more particularly 
in the maritime zones under the sovereignty or jurisdiction of 
the signatory States, whether carried on by land-based industries 
or by floating factories, shall be subject to the rules prescribed by 
the Conference, whose Standing Committee shall study and, in 
agreement with the Governments of the States aforesaid, decide 



5 Revista Peruana de Derecho International, tomo XIV, No. 45, 1954, pp. 108 
et seq. Translation by the Secretariat of the United Nations. 



271 

upon any amendment which may be advisable for the purpose of 
the expansion or improvement of the industries or which (so far 
as it is not inconsistent with the provisions agreed upon by the 
Conference) is consequential upon some international commitment 
entered into hereafter. 

Article 2. The authorities of the several States shall be 
responsible for the control of whaling, whether carried on by 
floating factories or from land stations, and for the enforcement 
of the provisions of these Regulations. 

Article 3. For the purposes of the previous article, every 
whaling undertaking now existing or to be organized in the future 
must be entered in the special register kept by the Standing 
Committee ; every such undertaking shall file a declaration specify- 
ing the number and position of its land stations, the number and 
category of the whaling units at its disposal, or the number and 
characteristics of the ships or vessels constituting the floating 
factory. 

Article 4. Pelagic whaling shall not be carried on in the 
maritime zone under the jurisdiction or sovereignty of the 
signatory countries except under a permit issued by the Standing 
Committee, which shall prescribe the conditions governing the 
issue of such permits. Any such permit shall not be issued except 
by unanimous decision of the Standing Committee. 

The signatory countries shall prescribe the penalties applicable 
to any person who fails to comply with this provision. 

Article 5. The taking and treatment of whales by a land 
station shall not be carried on in the maritime zone under the 
sovereignty or jurisdiction of a Contracting State except by an 
undertaking thereunto authorized by the Government concerned 
pursuant to these Regulations. 

Article 6. An offence under these Regulations committed by 
an undertaking established in a Contracting State shall be 
punished in accordance with the legislation in force in that State. 

Article 7. The crew of a whale catcher or of a factory ship, 
and the technical staff employed at a land station, must be 
registered in a special register, kept for the purpose by the Stand- 
ing Committee, in which the undertaking employing the crew or 
staff shall be specified. 

Article 8. The taking and treatment of gray or right whales 
shall be permitted only in cases in which the meat and products 
derived from the said whales are intended exclusively for con- 
sumption by the public. In no case shall such whales measuring 
less than 10.7 metres be taken. 



21.3 


metres 


16.8 


n 


12.2 


a 


10.6 


a 


10.7 


u 



272 

Article 9. It is forbidden to take suckling whales or calves or 
female whales which are accompanied by their young. 

Article 10. Pelagic whaling for baleen whales shall be for- 
bidden in the maritime zone under the jurisdiction or sovereignty 
of the States aforesaid. 

Article 11. It is forbidden to take or treat whales measuring 
less than the following lengths : 

(a) blue whales 

(b) fin whales 

(c) sei whales 

(d) humpback whales 

(e) sperm whales 

Article 12. If the meat of whales is intended for use as 
human or animal food, the minimum sizes shall be reduced to the 
following (provision applicable to land stations) : 

(a) 19.8 metres 

(b) 15.2 

(c) 10.7 

(d) 9.1 

Article 13. Whales must be measured when at rest on deck 
or platform, as accurately as possible, by means of a steel tape 
measure which shall be stretched in a straight line parallel with 
the whale's body. The ends of the whale, for measurement pur- 
poses, shall be the point of the upper jaw and the notch between 
the tail flukes. 

Article 14. Every whale taken shall be placed at the disposal 
of the treatment station within forty hours after its death. 

Article 15. Every whale taken shall be delivered up and shall, 
except for the fins, be processed in its entirety, including the 
internal organs. 

Article 16. It shall not be necessary to treat completely the 
carcass of a whale found abandoned. 

Article 17. The contracts of employment of the skippers, 
crews and gunners of factory ships and whale catchers shall 
include provisions under which their remuneration shall depend 
upon the size, and not upon the number, of the whales taken. The 
remuneration of persons employed ashore shall depend upon the 
yield of their work. In no case shall a skipper, gunner or crew 
member of a whale catcher receive any remuneration for units 
taken in circumstances constituting a breach of these Regulations. 

Article 18. Every whaling undertaking is under a specific 
duty to communicate in writing to the competent authority and 



273 

to the Standing Committee, not later than on the fifteenth day of 
each month, the following particulars relating to its whaling 
activities in the previous month. 

(a) the number of whales of each species taken ; 

(b) the yield of oil, foods, fertilizers and other products 
derived therefrom; 

(c) the species, sex and length of each whale, whether in 
calf, and the size and sex, if ascertainable, of the foetus ; 

(d) any other information which a skipper may directly 
observe concerning the calving grounds and migration routes of 
whales. 

The competent authority of each country shall assemble all the 
above particulars and, supplementing the same with any other 
particulars which in its opinion are relevant to the whaling 
industry in that country, shall each year compile a complete report 
on the said industry and transmit a copy thereof to the Standing 
Committee not later than the last day of February in each year. 

Article 19. Without prejudice to the provisions of articles 
9, 11 and 12, the taking and treatment of sperm whales or cachalots 
by land stations shall not be subject to closed seasons or to a 
limitation of the catch. 

Article 20. Not later than 31 August of each year, the 
signatory countries shall, after having considered their require- 
ments, notify the Standing Committee of the number of blue- 
whale units which they propose to take during the ensuing calendar 
year, beginning on 1 January. In the light of the said notifications, 
the Standing Committee shall officially determine, not later than 
30 September, the year's quota of baleen whales to be taken in 
the South Pacific. 

Article 21. The year's quota of baleen whales to be taken 
shall be expressed in blue-whale units, the equivalent of which 
unit, by oil content, in other baleen whales is as follows : 
One blue-whale unit equals 2 fin whales 
One " " " " 2i/ 2 humpback whales 
One " " " " 6 sei whales 

Article 22. The skipper of a vessel engaged in the whaling 
industry shall be bound to notify the competent authorities im- 
mediately, by wireless, if he observes the presence of whale 
catchers or factory ships of foreign nationality in the waters 
subject to the jurisdiction of the Contracting States, and shall, in 
his message, report their position. He shall likewise report to the 
said authorities any message intercepted by him which originates 



274 

from a whaling vessel of foreign nationality and which affords 
grounds for suspecting that the vessel in question is engaged in 
whaling operations in the waters subject to the said jurisdiction. 

He shall at the same time transmit a similar report to the 
Technical Offices of the Standing Committee. 

Article 23. Each signatory Governent undertakes to prevent 
whaling operations from being carried on in the waters subject 
to its jurisdiction in circumstances constituting a breach of the 
provisions of these Regulations. 

Article 24. For the purposes of these Regulations, the follow- 
ing expressions shall have the meanings respectively assigned to 
them: 

(a) "land station" means any factory or industrial establish- 
ment for the treatment of whales which is set up on the mainland 
or island shores of a particular country. 

(b) "floating station" means any ship equipped to treat on 
board whales delivered to it, on condition that such ship moves on 
the sea, being either self-propelled or towed. 

(c) "baleen whale" means any whale other than a toothed 
whale ; 

(d) "blue whale" means any whale known by the name of 
blue whale, Sibbald's rorqual or sulphur bottom; 

(e) "finback" means any whale known by the name of fin 
whale, herring whale or razorback; 

(f) "sei whale" means any whale known by the name of 
Balaenoptera borealis or Rudolphi's rorqual, and shall be deemed 
to include Balaenoptera brydei; 

(g) "gray whale" means any whale also known by the name 
of California gray, devil fish, hard head or mussel digger ; 

(h) "humpback whale" means any whale known by the name 
of bunch, humpbacked whale, hump whale or hunchbacked whale ; 

(i) "right whale" means any whale known by the name of 
Pacific Arctic or Biscayan right whale, bowhead, great polar whale, 
Greenland whale, Nordkaper, North Atlantic right whale, North 
Cape whale, Pacific whale, pigmy right whale, Southern pigmy 
right whale or Southern right whale ; 

(j) "sperm whale" means a toothed whale, cachalot, 
spermacet whale or pot whale; 

(k) "Dauhval whale" means any unclaimed dead whale found 
floating with no signs of specific ownership ; 

(1) "quota" means the maximum number of units to be taken 
in the season of any one year. 



275 

3. Agreements 6 between Chile, Ecuador and Peru signed at the 
Second Conference on the Exploitation and Conservation of 
the Maritime Resources of the South Pacific, Lima, 4 December 
1954 

Sfe *■-" *?* **"* 1?* sis 5"t 

a. AGREEMENT SUPPLEMENTARY TO THE DECLARATION OF SOV- 
EREIGNTY OVER THE MARITIME ZONE OF TWO HUNDRED MILES * 

The Governments of the Republic of Chile, Ecuador and Peru, 
in conformity with the provisions of Resolution X of 8 October 
1954, signed at Santiago de Chile by the Standing Committee of 
the Conference on the Exploitation and Conservation of the 
Maritime Resources of the South Pacific, 

Having noted the proposals and recommendations approved in 
October of this year by the said Standing Committee, 

Have appointed the following plenipotentiaries : 



And whereas 

Chile, Ecuador and Peru have proclaimed their sovereignty 
over the sea adjacent to the coasts of their respective countries to 
a distance of not less than two hundred nautical miles from the 
said coasts, the sea-bed and the subsoil of this maritime zone being 
included ; 

The Governments of Chile, Ecuador and Peru, at the First 
Conference on the Exploitation and Conservation of the Maritime 
Resources of the South Pacific, held at Santiago de Chile in 1952, 
expressed their intention of entering into agreements or con- 
ventions relating to the application of the principles governing 
that sovereignty, for the purpose in particular of regulating and 
protecting hunting and fisheries within their several maritime 
zones ; 

NOW THEREFORE THE SAID PLENIPOTENTIARIES HEREBY AGREE 
AS FOLLOWS : 

1. Chile, Ecuador and Peru shall consult with one another for 
the purpose of upholding, in law, the principle of their sovereignty 
over the maritime zone to a distance of not less than two hundred 



6 Ratified by Peru. According to the Final Act of the Third Meeting 
(Quito), infra, December, 1955, action on ratification is in process in the 
Ecuadorian and Chilean National Congresses. 

7 Revista Peruana de Derecho International, tomo XIV, No. 46, 1954, pp. 
276 et seq. Translation by the Secretariat of the United Nations. 



276 

nautical miles, including the sea-bed and the subsoil corresponding 
thereto. The term "nautical mile" means the equivalent of one 
1,852.8 metres. 

2. If any complaints or protests should be addressed to any of 
the Parties, or if proceedings should be instituted against a Party 
in a court of law or in an arbitral tribunal, whether possessing 
general or special jurisdiction, the contracting countries undertake 
to consult with one another concerning the case to be presented 
for the defence and furthermore bind themselves to co-operate 
fully with one another in the joint defence. 

3. In the event of a violation of the said maritime zone by force, 
the State affected shall report the event immediately to the other 
Contracting Parties, for the purpose of determining what action 
minute of the arc measured on the Equator, or a distance of 
should be taken to safeguard the sovereignty which has been 
violated. 

4. Each of the Contracting Parties undertakes not to enter into 
any agreements, arrangements or conventions which imply a 
diminution of the sovereignty over the said zone, though this 
provision shall not prejudice their rights to enter into agreements 
or to conclude contracts which do not conflict with the common 
rules laid down by the contracting countries. 

5. All the provisions of this Agreement shall be deemed to be 
an integral and supplementary part of, and not in any way to 
abrogate, the resolutions and decisions adopted at the Conference 
on the Exploitation and Conservation of the Maritime Resources 
of the South Pacific, held at Santiago de Chile in August 1952. 



b. AGREEMENT RELATING TO PENALTIES « 

1. If any person, whether a national or an alien and whether 
an individual or a body corporate, commits an offence against the 
regulations governing maritime fisheries and hunting which have 
been approved by the Conference, that person shall be liable to 
the penalties hereinafter prescribed. 

2. Any such offence as aforesaid shall be punishable by the 
seizure of the product which is the object of the offence, in the 
condition in which it then is, without prejudice to the imposition 
of any or all of the following penalties : 



8 Revista Peruana de Derecho International, tomo XIV, No. 46, 1954, pp. 
277 et seq. Translation by the Secretariat of the United Nations. 



277 

(a) a fine of one to five times the commercial value of the 
product of hunting or fishing obtained through the offence ; 

(b) an order prohibiting the person in question from fishing 
or hunting in the maritime zones or from entering the ports of 
the contracting countries for a period which shall not be less than 
six months or more than three years ; and 

(c) in the event of a repetition of the offence, the court shall 
in addition impose the fines mentioned in subsection (a) above, 
increased at its discretion to any sum not exceeding the com- 
mercial value of the vessel or vessels which committed the offence. 
It may also make an order under subsection (b) providing for a 
prohibition to be in effect for double the period mentioned in the 
said subsection. 

3. The vessel or vessels which committed the offence shall be 
under attachment pending trial, as security for the payment of the 
fines, unless the court has accepted some other form of security. 
The vessel in question shall remain answerable even in the event 
of a change in its nationality, ownership or management. 

This provision shall apply also to any costs or disbursements 
which may have been occasioned, and the sum due by reason 
thereof shall constitute a prior charge. 

4. The managing owner of the vessel and the captain or master 
shall be jointly liable for offences. Notices shall be served on the 
captain or master, who shall be deemed to be the authorized agent 
of the owner so long as the latter does not designate some other 
person to act on his behalf. 

5. The court shall place at the disposal of the Standing Com- 
mittee the entire cash proceeds of the fines recovered or seizures 
made in pursuance of these provisions relating to penalties. The 
Committee shall distribute these proceeds in equal shares among 
the Contracting Parties, subject to a deduction of 10 per cent 
representing receipts to be applied towards its budget. 

6. In each contracting country a special court shall be constituted 
to try cases involving such offences and to impose the appropriate 
penalties. This court shall, in the several countries, be constituted 
in the following manner : 

(a) in Chile, it shall be composed of the President of the 
Court of Appeal of Valparaiso, who shall act as president, the 
Superintendent of Customs and the Director of Coastal Areas and 
Merchant Marine ; 

(b) in Ecuador, it shall be composed of the President of the 
High Court of Guayaquil, who shall act as president, the Director- 
General of Customs and the Officer Commanding the Naval Dis- 
trict ; and 



278 

(c) in Peru, it shall be composed of the President of the 
High Court of Lima, who shall act as president, the Super- 
intendent-General of Customs, and the Director of Port Au- 
thorities. 

In the event of absence or impediment, any member of these 
courts shall be replaced by the person designated as his substitute 
by the law of the particular country. 

7. The offences referred to in these provisions shall be tried and 
punished by the court of the country which effected the capture 
of the offender. 

8. The Standing Committee is hereby empowered to propose 
to the several countries the rules to be observed by the courts in 
dealing with and adjudicating cases. Until these rules become 
operative, each country shall apply the provisions of municipal law. 

9. All the provisions of this Agreement shall be deemed to be 
an integral and supplementary part of, and not in any way to 
abrogate, the resolutions and decisions adopted at the Conference 
on the Exploitation and Conservation of the Maritime Resources 
of the South Pacific, held at Santiago de Chile in August 1952. 



c. AGREEMENT RELATING TO MEASURES OF SUPERVISION AND CON- 
TROL IN THE MARITIME ZONES OF THE SIGNATORY COUNTRIES 9 

1. It shall be the function of each signatory country to supervise 
and control the exploitation of the resources in its maritime zone 
by the use of such organs and means as it considers necessary. 

2. The supervision and control referred to in section 1 shall be 
exercised by each country exclusively in the waters under its 
jurisdiction. Nevertheless, the ships or aircraft of a signatory 
country may enter the maritime zone of another signatory country, 
without requiring special authorization, in any case in which that 
other country expressly requests its co-operation. 

3. The ships or aircraft of each of the signatory countries shall 
report to the authority designated in every such country the 
fullest particulars concerning the position, identification and 
occupation of the fishing or hunting vessels sighted by them in 
the course of their patrols. Any messages transmitted by tele- 
communications for this purpose shall be exempt from charges, 
dues and taxes. Each country shall make regulations for the pur- 
pose of giving effect to these provisions. 



9 Revista Peruana de Derecho International, tomo XIV, No. 46, 1954, pp. 
280 et seq. Translation by the Secretariat of the United Nations. 



m 

4. With a view to making supervision more effective, the tech- 
nical agencies shall establish a rapid and efficient system for the 
exchange of information among the signatory countries. 

5. Any person shall be empowered to report to the competent 
maritime authorities the presence of vessels engaged in the 
clandestine exploitation of maritime resources within the maritime 
zone. 

6. The consuls of the signatory countries shall keep their 
Governments constantly informed of the preparation, departure, 
passage, arrival and provisioning of, and other particulars relating 
to all the whaling or fishing expeditions which leave or pass 
through the ports where the said consuls are stationed and the 
real or apparent destination of which is the waters of the South 
Pacific. 

7. All the provisions of this Agreement shall be deemed to be 
an integral and supplementary part of, and not in any way to 
abrogate, the resolutions and decisions adopted at the Conference 
on the Exploitation and Conservation of the Maritime Resources 
of the South Pacific, held at Santiago de Chile in August 1952. 



d. AGREEMENT RELATING TO THE ISSUE OF PERMITS FOR THE EX- 
PLOITATION OF THE MARITIME RESOURCES OF THE SOUTH PACIFIC ™ 

1. It shall not be lawful for any person, whether an individual 
or body corporate to engage in hunting or fishing, the extraction 
of vegetable products or in any other form of exploitation of 
resources existing in the waters of the South Pacific within the 
maritime zone, unless that person has first obtained the required 
permit. 

2. The issue of permits authorizing foreign vessels not employed 
by national companies, to operate in the maritime zone shall be 
governed by the terms of this Agreement and shall be contingent 
upon a favourable report by the technical agencies of each 
country. 

Any permit for the fishing or hunting of species which are 
subject to international quotas shall be issued by the countries 
concerned, subject, however, to strict observance of the quotas 
fixed by the Standing Committee at its annual meeting, or in 
default of such meeting, by the Secretariat with the unanimous 
approval of the Standing Committee. 



10 Revista Peruana de Derecho International, tomo XIV, No. 46, 1954, pp. 
281 et seq., Translation by the Secretariat of the United Nations. 



280 

Pelagic whaling shall not be carried on in the maritime zone 
under the jurisdiction or sovereignty of the signatory countries 
except under a permit issued by the Standing Committee, which 
shall prescribe the conditions governing the issue of such permits. 
Any such permit shall not be issued except by unanimous decision 
of the Standing Committee. 

3. The issue of a permit binds the applicant to observe the rules 
relating to the conservation of the species referred to in the 
relevant regulations and in the orders made by the contracting 
countries, and also to furnish security in an amount to be deter- 
mined in each particular case. 

4. Each permit shall specify the nature of the operations which 
may be carried on, the number of the species which the holder may 
fish or hunt, the area of sea in which he may operate, the opening 
and closing dates of his operations, the port at which the inspector 
or inspectors responsible for supervision are to be taken on board, 
the amount of the fees and the security which has been determined 
and any other conditions considered desirable for the purpose of 
securing compliance with the relevant regulations, including au- 
thorization to use the telecommunications service. 

5. Applicants shall state at what port in any one of the countries 
they intend to call for the purpose of taking on board the inspectors 
who will ensure compliance with the relevant regulations. The 
costs of the services of these inspectors shall be chargeable to the 
applicant, with the exception of the inspectors' salaries, which shall 
be paid by the Government concerned. 

In the discharge of their duties, the inspectors shall see to it 
that all the conditions are observed and shall keep a complete 
record of the operations. 

6. Permits for national-flag vessels, or for foreign-flag vessels 
employed by national companies, whether engaged in fishing or 
hunting, authorizing them to operate in waters within the exclusive 
jurisdiction of any of the countries, shall continue to be issued by 
the competent authority in accordance with the domestic regula- 
tions in force and in conformity with the Conventions relating to 
the protection of maritime resources, without prejudice to the pro- 
visions of section 2, second subsection. The issue of such authoriza- 
tions shall be reported to the Secretariat for the information of 
all the Parties. 

7. Draft administrative and other regulations necessary for the 
proper application of this Agreement shall be prepared by the 
Secretariat within six months. The draft or drafts shall be sub- 
mitted to the Standing Committee for approval but may be applied 
provisionally until that approval has been obtained. 



281 

8. All the provisions of this Agreement shall be deemed to be an 
integral and supplementary part of, and not in any way to 
abrogate, the resolutions and decisions adopted at the Conference 
on the Exploitation and Conservation of the Maritime Resources 
of the South Pacific, held at Santiago de Chile in August 1952. 



»g* *J* *!-• »t* »?» jj v** 

e. AGREEMENT RELATING TO THE REGULAR ANNUAL MEETING OF 

THE STANDING COMMITTEE " 

1. The Standing Committee shall meet annually at an appro- 
priate date to determine the quota of sperm whales which may be 
hunted by foreign pelagic whaling expeditions during the whaling 
season from 1 July to 30 June of the following year. 

2. At the said meeting the Standing Committee shall also deter- 
mine the amount of the fees chargeable during the year for the 
issue of permits to foreign pelagic whaling expeditions. The 
standing Committee shall deposit the proceeds of those fees, which 
are the joint property of the signatory countries, in a single bank, 
and shall apply them to the exclusive purpose of establishing such 
marine biology stations as may be necessary, first preference being 
given to the establishment of one such station at an appropriate 
point in the Galapagos Islands, other stations being established 
later at suitable points in the South Pacific. After this first need 
has been satisfied, the balance shall be applied to the purpose of 
promoting studies and research the object of which is to improve 
the production, conservation and utilization of the maritime 
resources of the South Pacific. 

3. All the provisions of this Agreement shall be deemed to be 
an integral and supplementary part of, and not in any way to 
abrogate, the resolutions and decisions adopted at the Conference 
on the Exploitation and Conservation of the Maritime Resources 
of the South Pacific, held at Santiago de Chile in August 1952. 



******* 
f. AGREEMENT RELATING TO A SPECIAL MARITIME FRONTIER ZONE ™ 



And whereas 

Experience has shown that innocent and inadvertent violations 



11 Revista Peruana de Derecho International, tomo XIV, No. 46, 1954, pp. 
283 et seq. Translation by the Secretariat of the United Nations. 

12 Revista Peruana de Derecho International, tomo XIV, No. 46, pp. 285 
et seq. Translation by the Secretariat of the United Nations. 



282 

of the maritime frontier between adjacent States occur frequently 
because small vessels manned by crews with insufficient knowledge 
of navigation or not equipped with the necessary instruments have 
difficulty in determining accurately their position on the high seas ; 

The application of penalties in such cases always produces 
ill-feeling in the fishermen and friction between the countries 
concerned, which may affect adversely the spirit of co-operation 
and unity which should at all times prevail among the countries 
signatories to the instruments signed at Santiago ; and 

It is desirable to avoid the occurrence of such unintentional 
infringements, the consequences of which affect principally the 
fishermen ; 

NOW THEREFORE THE SAID PLENIPOTENTIARIES HEREBY AGREE 
AS FOLLOWS : 

1. A special zone is hereby established, at a distance of 12 miles 
from the coast, extending to a breadth of 10 nautical miles on 
either side of the parallel which constitutes the maritime boundary 
between the two countries. 

2. The accidental presence in the said zone of a vessel of either 
of the adjacent countries, which is a vessel of the nature described 
in the paragraph beginning with the words "Experience has 
shown" in the preamble hereto, shall not be considered to be a 
violation of the waters of the maritime zone, though this provision 
shall not be construed as recognizing any right to engage, with 
deliberate intent, in hunting or fishing in the said special zone. 

3. Fishing or hunting within the zone of 12 nautical miles from 
the coast shall be reserved exclusively to the nationals of each 
country. 

4. All the provisions of this Agreement shall be deemed to be 
an integral and supplementary part of, and not in any way to 
abrogate, the resolutions and decisions adopted at the Conference 
on the Exploitation and Conservation of the Maritime Resources 
of the South Pacific, held at Santiago de Chile in August 1952. 



******* 

4. Final Act of the Third Meeting of the Permanent Committee 
of the Conference on Exploitation and Conservation of the 
Maritime Resources of the South Pacific (Quito), December 
1955. (Excerpts) 

a. Note. According to this Final Act, previous meetings of the Permanent 
Committee were held in Santiago, October 1954, and in Lima, March 1955. 
Records of these earlier conferences were not available. The Resolutions and 



283 

Regulations here reproduced were adopted and approved, respectively, by the 
Third Meeting. Translation by the Department of State. 



b. RESOLUTION ON THE QUOTA OF WHALEBONE WHALES TO BE 
HUNTED BY LAND STATIONS (RESOLUTION VIII) 

In view of the provisions of Article 20 of the Regulations 
approved in 1952 on maritime hunting activities in South Pacific 
waters, and considering the small number of whalebone whales 
hunted by land stations of the South Pacific countries, as the 
statistics prove, 

It is resolved: 

Not to set quotas for the hunting of whalebone whales by land 
stations for the seasons that will end June 30, 1957, national land 
stations consequently being free to hunt whalebone whales during 
that period under the conditions specified by the Regulations in 
force. 



c. RESOLUTION ON QUOTAS FOR THE PELAGIC HUNTING OF SPERM 

WHALES (RESOLUTION IX) 

In view of the provisions of Article 4 of the Regulations for 
Maritime Hunting Activities, approved in 1952 ; Article 2 of the 
Agreement on the Granting of Permits, approved in 1954; and 
Articles 1 and 2 of the Agreement on Regular Annual Meetings 
of the Permanent Committee, approved in 1954, 

It is resolved : 

1. To fix a quota of 2,100 sperm whales for pelagic hunting for 
the season beginning July 1, 1956, and ending June 30, 1957 ; 

2. To fix a quota for the current season ending June 30, 1956, 
of an amount proportionate to the number specified in the pre- 
ceding clause, in relation to the time in which the authorizations 
granted are in effect ; 

3. To fix as the fees to be paid by pelagic hunting enterprises 
those that result from the application of Article 27 of the Regula- 
tions on permits for exploitation of the resources of the South 
Pacific, approved in 1955. 



d. REGULATIONS ON PERMITS FOR EXPLOITATION OF THE RE- 
SOURCES OF THE SOUTH PACIFIC 

Title I 
General Provisions 
Article 1. No natural or juristic person may engage in fishing 



284 

or hunting activities or any other exploitation of the resources 
existing in the maritime zone of Chile, Ecuador, or Peru without 
previously obtaining the appropriate permit. 

Article 2. Issuance of the permit in all cases obligates the 
applicant to comply with the rules of conservation of the respective 
marine species or resources in accordance with the regulations and 
provisions in force in the country to which the maritime zone in 
which the activities will be carried on belongs. 

Article 3. Permits shall be of three kinds: (a) Permits for 
exploitation of mineral or other resources ; (b) permits for marine 
fishing; and (c) permits for whaling. 

Title II 

Permits for Exploitation of Mineral Resources 
Article 4. All applications for permits to exploit mineral 
resources found in the maritime zone must be submitted to the 
appropriate authority of the country in which the exploitation is 
to be carried out. 

These permits must conform to the legislative provisions of the 
country and shall be processed and issued pursuant thereto. 

Article 5. When the permit has been issued, the appropriate 
authority shall so inform the General Secretariat of the Permanent 
Committee for the Conservation and Exploitation of the Maritime 
Resources of the South Pacific, through the respective National 
Technical Secretariat. 

Title III 

Permits for Marine Fishing 

Article 6. Applications for marine fishing permits shall be 
submitted to the appropriate authority of the country in whose 
maritime zone the activities are to be carried out. 

Article 7. Applications for fishing permits for vessels of 
national registry or vessels of foreign registry working for 
national companies must contain the data required by the pertinent 
national legislation. 

Article 8. Applications for fishing permits for vessels of 
foreign registry not working for national companies must state 
the following, in addition to the requirements of the preceding 
Article : the nature of the activities, amount of the species which 
the applicant intends to fish, with an indication of the period of 
time and the maritime zone in which he wishes to operate, date 
on which it is desired to begin the activities, their period of 
duration, and port of embarkation of the inspection authorities. 

Article 9. In order that the provisions adopted by the Per- 



285 

manent Committee with respect to international quotas may be 
complied with, the Technical Secretariat of the Committee in each 
country shall give written notice of the said quotas to the appro- 
priate authorities as soon as they are fixed by definitive resolution 
of the Committee. 

Article 10. Permits requested by vessels of foreign registry 
not working for national companies shall be decided upon by the 
appropriate authorities of the country concerned in accordance 
with the information supplied by its technical agencies. 

Article 11. Permits for fishing in the maritime zone must 
comply with national legislation. Those issued to vessels of foreign 
registry not working for national companies must in all cases state 
the following : nature of the activities, amount of the species which 
the party concerned may fish, the maritime zone where operations 
will take place, date of beginning and end of the period allowed 
for the activities, the port where the inspectors charged with 
control will embark, when this is judged to be necessary ; authoriza- 
tion for use of telecommunications service ; and such other condi- 
tions as are deemed desirable to ensure compliance with pertinent 
regulations. 

Article 12. Notice of all fishing permits issued must be given 
by the appropriate authority to the General Secretariat of the 
Permanent Committee through the National Technical Secretariat. 

Title IV 

Permits for Whaling 

Article 13. Permits for whaling in the maritime zone of the 
South Pacific are of two kinds: first, permits for land stations; 
second, permits for pelagic hunting of sperm whales. 

Land stations are understood to be those industrial installations 
for the handling and processing of captured whales which are 
established on the mainland of the continent or on natural islands. 

Pelagic hunting of whales is understood to be that activity which 
utilizes floating factory ships, regardless of whether they operate 
at sea or are anchored. 

Section 1 
Whaling Permits for Land Stations 
Article 14. Permits for the hunting and processing of whales 
by land stations shall be issued by the respective national authority. 
These permits shall be governed by the legislation of the issuing 
country and by the regulations for maritime hunting activities of 
1952, as approved by the First Conference of Santiago, Chile. 
Land stations which national authorities may in future authorize 



286 

for installation must be located not less than 250 nautical miles 
from the nearest national land station. 

Article 15. Land stations authorized under the foregoing 
Article must conform to the quotas for the hunting of whalebone 
whales determined by the Permanent Committee pursuant to 
Articles 20 and 21 of the Regulations for Maritime Hunting 
Activities, of 1952. 

The Permanent Committee shall determine the quotas for the 
hunting of whalebone whales by land stations at the same regular 
meeting at which pelagic hunting quotas are fixed pursuant to 
Article 27. 

Section 2 
Permits for Pelagic Hunting of Sperm Whales 

Article 16. National or foreign enterprises interested in 
engaging in pelagic hunting of sperm whales in the maritime 
zones of Chile, Ecuador, or Peru must have the permission of 
the Permanent Committee, granted by unanimity. 

Permits issued under this Article shall not be transferable. 

Article 17. Pelagic hunting permits issued by the Permanent 
Committee shall expressly reserve the hunting in a zone included 
between the parallels located 200 nautical miles north and south of 
the point at which any land station is based. 

Article 18. Pelagic hunting shall be restricted to sperm 
whales of the size and conditions specified in existing regulations 
of the International Whaling Commission for this type of activity. 

The provisions of this Article are without prejudice to the 
application in all other respects of the Regulations for Maritime 
Hunting Activities, of 1952. 

Article 19. The Permanent Committee shall invite repre- 
sentatives of interested enterprises or the consuls of the countries 
to which they belong, to attend the meeting which the said 
Committee holds for the purpose of issuing permits and alloting 
pelagic hunting quotas. 

The General Secretariat shall announce, by notices published in 
good time in newspapers of Oslo, . . ., Lima, Quito, and Santiago, 
the quota set for pelagic hunting of sperm whales in the maritime 
zone of the South Pacific, the date for submission of applications 
by the interested companies, date and place for holding the meeting 
of the Permanent Committee that is to make the decisions, and 
a general invitation to the interested parties to attend it, per- 
sonally or through their representatives. 

Article 20. The applications submitted by the interested 
parties must contain the data required according to the provisions 



287 

of Article 22 of these Regulations. In addition, compliance with 
Articles 3 and 7 of the Regulations on Maritime Hunting Ac- 
tivities, of 1952, must be shown. 

Article 21. The Permanent Committee shall decide on the 
permit applications submitted, dividing the quota into allotments 
among various interested enterprises or granting it in its entirety 
to a single one. 

Article 22. The permit granted by the Permanent Committee 
must state the following in each case : name and particulars of the 
enterprise ; name of the factory ship or ships and place of registra- 
tion ; number of hunters ; quota of sperm whales for which hunting 
is authorized ; maritime zone of operation ; date of beginning and 
end of the period granted for the activities; port of embarkation 
of the inspectors charged with control; fees to be paid by the 
enterprise for the permit ; authorization for use of telecommunica- 
tions ; and such other conditions as are deemed desirable to ensure 
compliance with the pertinent regulations. 

When the permit is granted, the representative of the authorized 
enterprise and the Secretary General of the Permanent Committee 
shall sign a document in triplicate, containing all the details of 
the authorization given. A marine map showing the various hunt- 
ing areas and also the reserve zones stipulated in Article 17 shall 
form an integral part of that document. 

Article 23. Enterprises authorized to engage in pelagic hunt- 
ing may begin their activities on any date they consider convenient, 
within the established periods. They must give the General 
Secretariat, in writing, fifteen days in advance, notice of the date 
for beginning their operations and of the date on which they will 
be in the inspectors' port of embarkation. 

Article 24. Enterprises that engage in pelagic hunting must 
communicate the following details to the General Secretariat of 
the Permanent Committee: 

(a) Number of sperm whales taken; 

(b) Yield of oil, edible products, and other products obtained ; 

(c) Sex and dimensions of the whales ; state of pregnancy and 
sex and dimensions of the foetus ; 

(d) Any information that may be obtained regarding places 
and routes of the migration and reproduction of whales. 

Article 25. The whale hunting quota authorized by each 
permit must be reached in uninterrupted activities from the date 
when operations begin to the date on which the quota is filled or 
the permit expires. 

Article 26. Before making use of the pelagic hunting permit, 
the authorized national or foreign enterprise must pay to the 



288 

General Secretariat of the Permanent Committee the full amount 
of the fees applying thereto. 

All funds received from this source shall be deposited in a single 
bank to the account of the Permanent Committee, for use for the 
purposes specified in Article 2 of the Agreement on the Regular 
Annual Meeting, signed in 1954. 

Article 27. In order to comply with the provisions of the 
aforesaid Agreement on the Annual Meeting of the Permanent 
Committee, the said Committee shall fix at its regular meetings 
the annual quota of sperm whales that may be hunted in the 
maritime zones of the South Pacific by national or foreign pelagic 
(hunting) enterprises in the hunting season between July 1 and 
June 30 of the following year. The annual quota shall be divided 
into three equal subquotas, one for Chile, one for Ecuador, and 
one for Peru, and under no circumstances may a larger number 
than that authorized be taken in the maritime zone of any country. 

In fixing the quota, the Committee shall take into account the 
statistics on sperm whale hunting compiled both by land stations 
and by pelagic [hunting] enterprises. 

In no case may the annual pelagic hunting quota be such as to 
constitute a danger to the conservation of sperm whales in line 
with available scientific, technical, and statistical information. 

Article 28. At the same Annual Meeting at which the pelagic 
hunting quota is fixed, the Permanent Committee shall also deter- 
mine the fees to be collected during the respective annual season 
for the issuance of permits to national or foreign enterprises. 

The Permanent Committee shall determine the amount of the 
fees on the basis of the tonnage of sperm oil obtained from the 
authorized pelagic hunting and 10 per cent of the world price for 
sperm oil, c.i.f . European ports, on the date the permit is granted. 

Calculations shall be based on a fixed yield of 3,500 kilograms of 
oil for each sperm whale authorized. 

Article 29. National pelagic hunting enterprises that furnish 
oil for consumption in their own country, within the quota assigned 
to them, shall be exempt from payment of the fees specified in 
Article 28, for the amount of oil brought into that country. 

Article 30. For the purposes of the agreements and regula- 
tions in force in the South Pacific maritime zone, a national pelagic 
hunting enterprise is understood to be one that meets the following 
requirements, as a minimum: 

(a) It must be located in one of the South Pacific countries 
and established in accordance with the legislation of that country ; 
and 



289 

(b) It must own a factory ship or factory ships for pelagic 
hunting. 

As an exception and for one time only, an enterprise may be 
considered a national enterprise if, although not owning a factory 
ship, it has in force a rental contract for a factory ship, with an 
agreement for purchase of the ship within an unextendable maxi- 
mum period of one year. 

Article 31. The provisions of Section 2 of Title IV are in 
agreement with the statements of the representatives of Chile, 
Ecuador, and Peru at the International Technical Conference on 
the Conservation of the living Resources of the Sea, held in Rome 
in 1955, at which the Permanent Committee of the South Pacific 
was recognized as an organization similar to but independent of 
the International Whaling Commission, in so far as whaling in the 
South Pacific maritime zone is concerned. 



5. Enforcement — Judgment (Opinion) of Peruvian Port Officer 

(1954) 

a. Note. In the background of the Santiago negotiations, referred to 
supra, were two serious incidents involving vessels fishing in the claimed 
maritime zones and resulting in the seizure of the vessels and the imposition 
of fines by the coastal authorities. On March 27, 1955, Ecuador seized two 
American flag fishing vessels 14 to 25 miles west of the Island of Santa Clara 
off the Ecuadorian coast, and seriously wounded an American seaman by 
gunfire. Despite protest by the United States, fines of more than $49,000 were 
imposed on the two vessels. 

In November, 1954, five whaling vessels owned by A.S. Onassis and flying 
the Panamanian flag were seized by Peruvian naval and air units. Two were 
captured 160 miles off the Peruvian coast, two were attacked 300 miles off 
the coast, and the factory vessel was attacked 364 miles off the coast, accord- 
ing to information furnished by Panama to the Organization of American 
States. The five vessels were held until fines of 3 million dollars were paid. 
Lloyd's of London held 90% and United States insurers held 10% of the 
risk. Panama, the United Kingdom and the United States all protested to 
Peru. The foregoing account of the two incidents is taken from Phleger, 
"Some Recent Developments Affecting the Regime of the High Seas", "32 
Department of State Bulletin (Jan.-June 1955) p. 934, at p. 937. The opinion 
of the Peruvian Port Authority in the case is reprinted below, and gives the 
Peruvian version of the facts. The Peruvian Port Authorities and National 
Mercantile Marine Regulations (approved by Presidential Decree No. 21, 
effective 1 January 1952), on which the proceedings were based, provides in 
Article 36 a right of appeal, within 24 hours after the fine is paid, to the 
Directorate of Port Authorities. Other pertinent articles of Presidential 
Decree No. 21 are referred to in the opinion. 

******* 



290 

b. JUDGMENT OF THE PORT OFFICER OF PAITA, PERU, IMPOSING 

A FINE OF U.S. $3,000,000 

(Translation by Rosa Amada Segarra from Enrique Garcia-Sayan, Notas 
sobre la Soberania Maritima del Peru — Defensa de las doscientas millas 
de mar peruana ante las recientes trans gresiones (Lima, 1955)) 

Paita, 26 November, 1954 

These summary proceedings were instituted on the 17th of this 
month against Captains Sofus Sauger, Willi Schlatermunel, Juel 
Eugbretson, Bjarne Anderson and Wilhelm Reichert, of the ships 
Olympic Victor, Olympic Lightning, Olympic Fighter, Olympic 
Conquerer and Olympic Challenger, for breach respectively of 
articles 731, 740, 742, 743 and 764 of the Port Authorities and 
National Merchant Marine Regulations approved by Supreme 
Decree No. 21 of 31 October 1951 and commencing on 1 January 
1952. 

On information received by the Government that a whaling fleet 
under the orders of Captain Wilhelm Reichert of the Olympic 
Challenger was whaling in Peruvian territorial waters without 
first having obtained permission, and killing whales in breach of 
the international and national regulations made for the preserva- 
tion of those marine resources, ships of the Peruvian Navy inter- 
cepted and arrested the two whalers Olympic Victor and Olympic 
Lightning; nine other whalers made off, and the Olympic Fighter, 
Olympic Conqueror and Olympic Challenger were arrested later. 
These facts have been fully proved by the reports and maps, 
exhibited to the court, giving the positions and sightings and 
movements of the ships of the Peruvian Navy. 

Whereas : 

1. In this case none of the masters responsible for the offence 
the subject of these proceedings asked permission of the Supreme 
Government to hunt either in coastal or in deep waters. 

2. The total company of all the arrested ships was 354 men, of 
whom 348 are German, 2 Norwegian, 1 British, 1 Chilean, 1 
Canadian and 1 Greek. The crew list of the Olympic Challenger 
contains the name of Mr. Antonio Isaza in the post of Inspector, 
nationality Panamanian. None of the captains was able to exhibit 
the documents required to be carried by the Port Authorities 
Regulations and the ordinary law: such as the ship's log, engine- 
room log or charts, nor the whaling register or whaling schedule. 
This fact constitutes the strongest evidence of the unlawfulness of 
the operations which they were carrying out. Captain Wilhelm 
Reichert testified on page 5 that he threw those books into the sea 
in the belief that Panama and Peru were at war. This statement 



291 

was improbable, not only because of its intrinsic extravagance but 
also because his ship was equipped with radio and other means of 
communication through which he was in constant touch with the 
stations of his superiors. This ingenuous excuse must therefore be 
rejected. 

3. It has been proved that the position of 11 whalers — that is, 
practically the whole whaling fleet — was ascertained by the ships 
of the Peruvian Navy, which detected and sighted them in a posi- 
tion exactly 110 miles from the Peruvian coast. The ships Olympic 
Victor and Olympic Lightning were captured at a distance of 
exactly 126 miles from the Peruvian coast, and the ships Olympic 
Fighter, Olympic Conqueror and Olympic Challenger were inter- 
cepted later when they took to flight. 

4. From the reports of the commanding officers of the ships of 
the squadron and from the declarations put in evidence, it appears 
that the whalers were first ordered to stop but did not do so until 
the order was supported by the measures of enforcement pre- 
liminary to the methods usually employed in these cases. These 
warning measures caused neither damage to the ships nor 
casualties among their crews. 

5. It has also been proved that the arrested ships and those 
which made off had operated within Peruvian territorial waters 
and had taken between 2,500 and 3,000 whales. This was admitted 
in the depositions put in evidence, starting at page 3. It was 
necessary for the required manoeuvre that the Olympic Challenger 
should be close to the catchers. This was corroborated by the 
depositions of members of the crew. The fact that the Olympic 
Challenger was captured outside the 200-mile limit does not 
weaken that evidence in any way, for those depositions show that 
when the mother-ship received word of the capture of the first 
two of the ships just mentioned she proceeded continuously for 
24 hours at high speed with special precautions, so that she was 
able to leave the zone and reach the point from which she was 
obliged to return and be impounded in this port. The Olympic 
Challenger was the ship which directed the catchers and gave 
them their bearings, and received and processed the catch taken 
within the 200-mile limit : about 6,800 tons of whale oil was found 
in her tanks. 

6. Hunting and fishing in territorial waters is permitted only 
to Peruvian nationals and to aliens domiciled in the Republic, by 
article 731 of the Port Authorities Regulations. Foreign vessels are 
not permitted to fish in territorial waters. Whaling and the com- 
mercial utilization of its products are industries which may be 
carried on by any citizen of the nation or by any alien domiciled 



292 

in Peru subject to the provisions of the existing statutes and 
regulations. Individuals and commercial undertakings intending 
to engage in these industries are required to apply to the Supreme 
Government for a license to do so ; and for whaling it is necessary 
to apply for a special concession under articles 740, 742 and 743 
of the Port Authorities and National Merchant Marine Regula- 
tions. The captains and agents of the arrested ships had acted in 
full knowledge of the declaration of the maritime zone published 
by Peru, Chile and Ecuador in 1952, but none of them had obtained 
such a licence or special concession. 

7. The Supreme Decree of 1 August 1947, considering that it is 
necessary that the State protect, maintain and establish a control of 
fisheries and other natural resources found in the continental 
waters which cover the submarine shelf and the adjacent con- 
tinental seas in order that these resources, which are so essential 
to our national life, may continue to be exploited now and in the 
future in such a way as to cause no detriment to the country's 
economy or to its food production, lays down that national sov- 
ereignty and jurisdiction are to be extended over the sea adjoining 
the shores of the national territory, whatever its depth and in the 
extension necessary to preserve, protect, maintain and utilize 
natural resources and wealth of any kind which may be found in 
or below those waters. These provisions are in harmony with those 
of the declaration of the maritime zone signed by Peru, Chile and 
Ecuador on 18 August 1952, to ensure the conservation and pro- 
tection of their natural resources and to regulate the use thereof to 
the greatest possible advantage of each country; hence it is like- 
wise the duty of each Government to prevent the said resources 
from being used outside the area of its jurisdiction so as to 
endanger their existence, integrity and conservation to the 
prejudice of peoples so situated geographically that their seas 
are irreplaceable sources of essential economic materials. 

These principles are defended by the Port Authorities Regula- 
tions, which require the issue of a special concession or license. 
It follows that the masters and crews of the arrested ships not 
only contravened the domestic law on whaling, but also acted to the 
prejudice of the national interests and wealth by engaging in a 
clandestine and unlawful form of whaling, which they attempted 
to conceal, encroaching on Peruvian jurisdictional waters without 
a licence from the authorities, and throwing overboard the docu- 
ments concerning not only their location or status at sea, but also 
the quantity, species and age of the whales killed. It is also a 
matter of common knowledge and of international repute that the 
arrested ships belong to a person associated with an industrial 



293 

organization which disobeys and contravenes every international 
rule made for the defence of the species which he was hunting. 

8. The principle referred to in the preceding paragraph is stated 
expressly and in all the necessary detail in article 764 of the Port 
Authorities Regulations, already cited more than once, which lay 
down that any person or undertaking intending to fish or hunt 
either in coastal or in deep waters shall be required to apply to the 
Supreme Government for a licence. This provision, in both the 
letter and the spirit, applies to individuals and bodies corporate, 
national and alien, whether domiciled in Peru or not, operating 
within or outside territorial waters; for the expression "deep 
water" hunting and fishing is expressly defined in article 735 of 
the Regulations as hunting or fishing carried on outside the 
territorial waters of the Republic. Unquestionably this require- 
ment of a licence from the Supreme Government, which in the 
present case was not complied with, is the elementary or funda- 
mental measure of protection which States are bound and entitled 
to give to the marine fauna and biological complex in the waters 
contiguous to their territories for the purpose of averting the 
extermination and disappearance of given species as a result of 
intensive clandestine operations which may cause irreparable 
harm. 

9. By article 555 of the Port Authorities Regulations the master 
is the commanding officer of a merchant ship and is personally 
responsible for the navigation and control of the ship, her crew and 
her cargo, and is the representative and confidential agent of the 
owner. For that reason these proceedings have been brought 
against the masters of the ships Olympic Victor, Olympic Light- 
ning, Olympic Fighter, Olympic Conqueror and Olympic Chal- 
lenger, because they personally conduct the venture of hunting and 
also because they are liable to make restitution for the damage and 
to suffer the penalty which is awarded to them jointly with the 
shipowners or proprietors, if these avail themselves of their lawful 
rights during these proceedings or any other proceedings which 
may be had in consequence thereof. 

10. In this case not only has a breach of the Port Authorities 
Regulations been committed, but there has also been evasion of 
payment of dues and the provocative attitude of the masters and 
of the persons who have instructed them to respass in territorial 
waters. They were debarred from entering these because it was 
common knowledge that they had had notice of the prohibition by 
Peru of encroachment on her waters. Although these circumstances 
have not been a subject of examination, in these proceedings, they 
constitute circumstances aggravating the offence charged. 



294 

11. By article 33 port officers are empowered to punish offences 
against the Regulations by the penalties and in the manner set 
forth in that article. Article 34 lays down that any offence for 
which the Regulations do not expressly provide a penalty shall 
render the offender liable to a fine proportional to the gravity of 
the offence. 

12. The act charged is an offence against the Regulations, 
punishable under the two articles just cited by a penalty appro- 
priate to the gravity of the offence itself and also to the numerous 
attendant circumstances, including the use and deployment of 
units of the Navy and Air Force to put down the offence. 

NOW THEREFORE THE COURT ORDERS AS FOLLOWS: 

(1) Captains Sofus Sauger, Willi Schlatermunel, Juel Eugbret- 
sen, Bjarne Anderson and Wilhem Reichert, masters respectively 
of the ships Olympic Victor, Olympic Lightning, Olympic Fighter, 
Olympic Conqueror and Olympic Challenger, and the owners or 
proprietors of the arrested ships, whose agents at law the said 
masters are, shall pay jointly and in common a fine of three million 
dollars or its equivalent in the national currency, within five days 
reckoned from the date of notification of this judgment, into the 
Deposit Accounts Fund, Revenue Department, Lima. 

(2) The ships Olympic Victor, Olympic Lightning, Olympic 
Fighter, Olympic Conqueror and Olympic Challenger shall remain 
impounded as security for the payment of the fine aforesaid, and 
shall be released on its payment in full. 



SECTION III 

FISHERY AGREEMENTS RELATING 
TO CONSERVATION OF STOCK 



SECTION III 

FISHERY AGREEMENTS RELATING TO CONSERVATION 

OF STOCK 

Page 

A. International Convention for the Regulation of Whaling, 1946, 

with Annexed Schedule containing Amendments as of 7 March 

1956 299 

1. Note 299 

2. Text of Convention 300 

3. Text of Amendments 306 

B. North Atlantic 315 

1. International Council for the Exploration of the Sea (1902). 

Statutes of the Council as revised 1950 315 

a. Note 315 

b. Statutes of the Council as Revised 1950 316 

2. Convention for the Regulation of Meshes of Fishing Nets and 

the Size Limits of Fish (1946) 317 

a. Note . . 317 

b. Text of Convention 317 

3. International Convention for the North-West Atlantic 

Fisheries (1949) 324 

a. Note 324 

b. Text of Convention 324 

C. Mediterranean 335 

1. Agreement for the Establishment of a General Fisheries 

Council for the Mediterranean (1949) 335 

a. Note 335 

b. Text of Agreement 335 

D. Indo-Pacific 340 

1. Agreement for the Establishment of an Indo-Pacific Fisheries 

Council (1948) 340 

a. Note 340 

b. Text of Agreement 340 

E. North Pacific 345 

1. Fur Seals. Note on Agreements 345 

2. Sockeye Salmon. Note on Agreements 345 

3. International Convention for the High Seas Fisheries of the 

North Pacific Ocean (1952) with Annex and Protocol . . 346 

a. Note 346 

b. Text of Convention 346 

297 



298 

4. Convention for the Preservation of the Halibut Fishery of 

the Northern Pacific Ocean and Bering Sea (1953) 356 

a. Note 356 

b. Text of Convention 357 

F. Western Pacific 360 

1. Introductory Note 360 

2. Treaty between Japan and the Union of Soviet Socialist 

Republics concerning Fisheries on the High Seas in the 

North Pacific Ocean and Annex (1956) 361 

a. Note 361 

b. Text of Treaty 361 

3. Non-governmental Agreement Concerning Fishing in the 

Yellow Sea and the East China Sea (1956) 368 

a. Note 368 

b. Text of Agreement 368 

G. Eastern Pacific 370 

1. Convention Between the United States of America and the 

Republic of Costa Rica for the Establishment of an Inter- 
American Tropical Tuna Commission, and Exchange of 

Notes (1950). Adherence by Panama 21 September 1953 . . 370 

a. Note 370 

b. Text of Convention 371 

c. Exchange of Notes 375 

H. Great Lakes 378 

1. Convention on Great Lakes Fisheries Between the United 

States of America and Canada (1954) 378 

a. Note 378 

b. Text of Convention 378 



A. International Convention for the Regulation of Whaling, 
1946, with Annexed Schedule Containing Amendments 
as of 7 March 1956 

1. Note. The 1946 Convention replaced for many of the parties the 1937 
Agreement for the Regulation of Whaling, IV Trenwith 5573. The United 
Kingdom, the United States, Panama and Sweden withdrew from the 1937 
Agreement effective 1 July 1949, and Australia, Canada, New Zealand and 
South Africa withdrew effective 1 July 1950. The Protocol of 1938 was 
similarly withdrawn from by the United Kingdom, United States, Canada 
and Panama as of 1 July 1949, and by Australia, New Zealand and South 
Africa as of 1 July 1950. The Geneva Convention for the Regulation of 
Whaling, 1931, remains in force as of October 31, 1955. The parties as of 
that date are given in Treaties in Force, at page 222. 

The 1946 Convention entered into force on November 10, 1948 for the 
United States, United Kingdom, Australia, Norway, South Africa, Union of 
Soviet Socialist Republics and the Netherlands. As of 20 July 1956, Brazil, 
Canada, Denmark, France, Iceland, Japan, Mexico, New Zealand, Panama and 
Sweden had become parties. The text is printed in 62 Stat. (2) 1716; TIAS 
1849, and British Command Paper No. 7604. Amendments to the Schedule 
were made on June 7, 1949; July 21, 1950; July 27, 1951; June 6, 1952; 
June 26, 1953; and July 23, 1954, and may be found in TIAS Numbers 2092, 
2173, 2486, 2699, 2866, and 3198. Except for the 1954 Amendment, the other 
Amendments above may be found in Command Paper Numbers 7853, 7918, 
8706 and 9048. Further amendments were made on 8 November 1954; 24 
February 1955; 8 November 1955; and 7 March 1956, as a result of the 
sixth and seventh meetings of the International Whaling Commission in 
Tokyo and Moscow. At the eighth meeting in London, July 16-20, 1956, the 
Commission recommended that the catch referred to in 8(a) of the Schedule 
should not exceed 15,000 blue-whale units, and should not exceed 14,500 
units for the 1956-57 season, with consequential changes in 8(c). These 
recommendations became effective 1 November 1956. TIAS 3739. At the con- 
clusion of the seventh meeting (Moscow), the Commission requested the 
United States to prepare a Protocol amending the Convention that would 
permit the appointment of independent observers for factory ships in addition 
to national inspectors. A protocol was opened for signature in Washington 
on 19 November 1956, and signed by all of the seventeen States that are 
parties to the 1946 Convention. It will become effective when all parties have 
ratified. As of August 1957, eleven States have deposited their ratifications. 
In addition, the ratification of the United States was deposited in 30 
August 1957. 

The Protocol for the Regulation of Whaling for the 1947-48 Season, 
Washington, 2 December 1946, is contained in Command Paper No. 7354. 
The Whaling Convention Act of 1949, replacing the Whaling Treaty Act of 
1936 (49 Stat. 1246; 16 U.S.C. 901-915), was approved August 9, 1950. 
Public Law 676, 81st Congress, 64 Stat. 421. The texts below are taken from 
the United States Department of the Interior certified copy, and the Inter- 
national Whaling Commission print of the Revised Schedule dated 7 March 

299 



300 

1956. The text of the 1946 Convention may also be found in 43 A.J.I.L., 
Supp., 1949, pages 174-185. 

******* 

2. International Convention for the Regulation of Whaling 

(1946) 

Washington, 2nd December 19^6 

The Governments whose duly authorized representatives have 
subscribed hereto, 

Recognizing the interest of the nations of the world in safe- 
guarding for future generations the great natural resources 
represented by the whale stocks ; 

Considering that the history of whaling has seen overfishing 
of one area after another and of one species of whale after another 
to such a degree that it is essential to protect all species of whales 
from further overfishing; 

Recognizing that the whale stocks are susceptible of natural 
increases if whaling is properly regulated, and that increases in 
the size of whale stocks will permit increases in the numbers of 
whales which may be captured without endangering these natural 
resources ; 

Recognizing that it is in the common interest to achieve the 
optimum level of whale stocks as rapidly as possible without 
causing widespread economic and nutritional distress ; 

Recognizing that in the course of achieving these objectives, 
whaling operations should be confined to those species best able 
to sustain exploitation in order to give an interval for recovery 
to certain species of whales now depleted in numbers ; 

Desiring to establish a system of international regulation for 
the whale fisheries to ensure proper and effective conservation and 
development of whale stocks on the basis of the principles em- 
bodied in the provisions of the International Agreement for the 
Regulation of Whaling signed in London on June 8, 1937 and the 
protocols to that Agreement signed in London on June 24, 1938 
and November 26, 1945 ; and 

Having decided to conclude a convention to provide for the 
proper conservation of whale stocks and thus make possible the 
orderly development of the whaling industry ; 

Have agreed as follows: 

Article I 

1. This Convention includes the Schedule attached thereto 
which forms an integral part thereof. All references to "Con- 
vention" shall be understood as including the said Schedule either 



301 

in its present terms or as amended in accordance with the pro- 
visions of Article V. 

2. This Convention applies to factory ships, land stations, and 
whale catchers under the jurisdiction of the Contracting Govern- 
ments, and to all waters in which whaling is prosecuted by such 
factory ships, land stations, and whale catchers. 

Article II 

As used in this Convention 

1. ''factory ship" means a ship in which or on which whales are 
treated whether wholly or in part ; 

2. "land station" means a factory on the land at which whales 
are treated whether wholly or in part ; 

3. "whale catcher" means a ship used for the purpose of hunt- 
ing, taking, towing, holding on to, or scouting for whales ; 

4. "Contracting Government" means any Government which 
has deposited an instrument of ratification or has given notice of 
adherence to this Convention. 

Article III 

1. The Contracting Governments agree to establish an Inter- 
national Whaling Commission, hereinafter referred to as the 
Commission, to be composed of one member from each Contracting 
Government. Each member shall have one vote and may be 
accompanied by one or more experts and advisers. 

2. The Commission shall elect from its own members a Chair- 
man and Vice Chairman and shall determine its own Rules of 
Procedure. Decisions of the Commission shall be taken by a simple 
majority of those members voting except that a three-fourths 
majority of those members voting shall be required for action in 
pursuance of Article V. The Rules of Procedure may provide for 
decisions otherwise than at meetings of the Commission. 

3. The Commission may appoint its own Secretary and staff. 

4. The Commission may set up, from among its own members 
and experts or advisers, such committees as it considers desirable 
to perform such functions as it may authorize. 

5. The expenses of each member of the Commission and of his 
experts and advisers shall be determined and paid by his own 
Government. 

6. Recognizing that specialized agencies related to the United 
Nations will be concerned with the conservation and development 
of whale fisheries and the products arising therefrom and desiring 
to avoid duplication of functions, the Contracting Governments 
will consult among themselves within two years after the coming 



302 

into force of this Convention to decide whether the Commission 
shall be brought within the framework of a specialized agency 
related to the United Nations. 

7. In the meantime the Government of the United Kingdom of 
Great Britain and Northern Ireland shall arrange, in consultation 
with the other Contracting Governments, to convene the first 
meeting of the Commission, and shall initiate the consultation 
referred to in paragraph 6 above. 

8. Subsequent meetings of the Commission shall be convened 
as the Commission may determine. 

Article IV 

1. The Commission may either in collaboration with or through 
independent agencies of the Contracting Governments or other 
public or private agencies, establishments or organizations, or 
independently 

(a) encourage, recommend, or if necessary, organize studies 
and investigations relating to whales and whaling ; 

(b) collect and analyze statistical information concerning 
the current condition and trend of the whale stocks and the effects 
of whaling activities thereon; 

(c) study, appraise, and disseminate information concerning 
methods of maintaining and increasing the populations of whale 
stocks. 

2. The Commission shall arrange for the publication of reports 
of its activities, and it may publish independently or in collabora- 
tion with the International Bureau for Whaling Statistics at 
Sandef jord in Norway and other organizations and agencies such 
reports as it deems appropriate, as well as statistical, scientific, 
and other pertinent information relating to whales and whaling. 

Article V 

1. The Commission may amend from time to time the provisions 
of the Schedule by adopting regulations with respect to the con- 
servation and utilization of whale resources, fixing (a) protected 
and unprotected species; (b) open and closed seasons; (c) open 
and closed waters, including the designation of sanctuary areas ; 
(d) size limits for each species; (e) time, methods, and intensity 
of whaling (including the maximum catch of whales to be taken 
in any one season) ; (f) types and specifications of gear and 
apparatus and appliances which may be used; (g) methods of 
measurement; and (h) catch returns and other statistical and 
biological records. 



303 

2. These amendments of the Schedule (a) shall be such as are 
necessary to carry out the objectives and purposes of this Con- 
vention and to provide for the conservation, development, and 
optimum utilization of the whale resources; (b) shall be based on 
scientific findings ; (c) shall not involve restrictions on the number 
or nationality of factory ships or land stations, nor allocate specific 
quotas to any factory ship or land station or to any group of 
factory ships or land stations; and (d) shall take into considera- 
tion the interests of the consumers of whale products and the 
whaling industry. 

3. Each of such amendments shall become effective with respect 
to the Contracting Governments ninety days following notification 
of the amendment by the Commission to each of the Contracting 
Governments, except that (a) if any Government presents to the 
Commission objection to any amendment prior to the expiration 
of this ninety-day period, the amendment shall not become effective 
with respect to any of the Governments for an additional ninety 
days; (b) thereupon, any other Contracting Government may 
present objection to the amendment at any time prior to the 
expiration of the additional ninety-day period, or before the 
expiration of thirty days from the date of receipt of the last 
objection received during such additional ninety-day period, which- 
ever date shall be the later; and (c) thereafter, the amendment 
shall become effective with respect to all Contracting Govern- 
ments which have not presented objection but shall not become 
effective with respect to any Government which has so objected 
until such date as the objection is withdrawn. The Commission 
shall notify each Contracting Government immediately upon re- 
ceipt of each objection and withdrawal and each Contracting 
Government shall acknowledge receipt of all notifications of 
amendments, objections, and withdrawals. 

4. No amendments shall become effective before July 1, 1949. 

Article VI 

The Commission may from time to time make recommendations 
to any or all Contracting Governments on any matters which 
relate to whales or whaling and to the objectives and purposes of 
this Convention. 

Article VII 

The Contracting Governments shall ensure prompt transmission 
to the International Bureau for Whaling Statistics at Sandefjord 
in Norway, or to such other body as the Commission may desig- 



304 

nate, of notifications and statistical and other information required 
by this Convention in such form and manner as may be prescribed 
by the Commission. 

Article VIII 

1. Notwithstanding anything contained in this Convention, any 
Contracting Government may grant to any of its nationals a 
special permit authorizing that national to kill, take, and treat 
whales for purposes of scientific research subject to such restric- 
tions as to number and subject to such other conditions as the 
Contracting Government thinks fit, and the killing, taking, and 
treating of whales in accordance with the provisions of this Ar- 
ticle shall be exempt from the operation of this Convention. Each 
Contracting Government shall report at once to the Commission all 
such authorizations which it has granted. Each Contracting Gov- 
ernment may at any time revoke any such special permit which it 
has granted. 

2. Any whales taken under these special permits shall so far as 
practicable be processed and the proceeds shall be dealt with in 
accordance with directions issued by the Government by which 
the permit was granted. 

3. Each Contracting Government shall transmit to such body 
as may be designated by the Commission, insofar as practicable, 
and at intervals of not more than one year, scientific information 
available to that Government with respect to whales and whaling, 
including the results of research conducted pursuant to paragraph 
1 of this Article and to Article IV. 

4. Recognizing that continuous collection and analysis of 
biological data in connection with the operations of factory ships 
and land stations are indispensable to sound and constructive man- 
agement of the whale fisheries, the Contracting Governments will 
take all practicable measures to obtain such data. 

Article IX 

1. Each Contracting Government shall take appropriate meas- 
ures to ensure the application of the provisions of this Convention 
and the punishment of infractions against the said provisions in 
operations carried out by persons or by vessels under its juris- 
diction. 

2. No bonus or other remuneration calculated with relation to 
the results of their work shall be paid to the gunners and crews 
of whale catchers in respect of any whales the taking of which is 
forbidden by this Convention. 

3. Prosecution for infractions against or contraventions of this 



305 

Convention shall be instituted by the Government having juris- 
diction over the offense. 

4. Each Contracting Government shall transmit to the Commis- 
sion full details of each infraction of the provisions of this 
Convention by persons or vessels under the jurisdiction of that 
Government as reported by its inspectors. This information shall 
include a statement of measures taken for dealing with the infrac- 
tion and of penalties imposed. 

Article X 

1. This Convention shall be ratified and the instruments of 
ratification shall be deposited with the Government of the United 
States of America. 

2. Any Government which has not signed this Convention may 
adhere thereto after it enters into force by a notification in writing 
to the Government of the United States of America. 

3. The Government of the United States of America shall 
inform all other signatory Governments and all adhering Govern- 
ments of all ratifications deposited and adherences received. 

4. This Convention shall, when instruments of ratification have 
been deposited by at least six signatory Governments, which shall 
include the Governments of the Netherlands, Norway, the Union 
of Soviet Socialist Republics, the United Kingdom of Great Britain 
and Northern Ireland, and the United States of America, enter 
into force with respect to those Governments and shall enter into 
force with respect to each Government which subsequently ratifies 
or adheres on the date of the deposit of its instrument of ratifica- 
tion or the receipt of its notification of adherence. 

5. The provisions of the Schedule shall not apply prior to July 
1, 1948. Amendments to the Schedule adopted pursuant to Article 
V shall not apply prior to July 1, 1949. 

Article XI 

Any Contracting Government may withdraw from this Con- 
vention on June thirtieth of any year by giving notice on or before 
January first of the same year to the depositary Government, 
which upon receipt of such a notice shall at once communicate it 
to the other Contracting Governments. Any other Contracting 
Government may, in like manner, within one month of the receipt 
of a copy of such a notice from the depositary Government, give 
notice of withdrawal, so that the Convention shall cease to be in 
force on June thirtieth of the same year with respect to the 
Government giving such notice of withdrawal. 

This Convention shall bear the date on which it is opened for 



306 

signature and shall remain open for signature for a period of 
fourteen days thereafter. 

In witness whereof the undersigned, being duly authorized, 
have signed this Convention. 

Done in Washington this second day of December 1946, in the 
English language, the original of which shall be deposited in the 
archives of the Government of the United States of America. The 
Government of the United States of America shall transmit 
certified copies thereof to all the other signatory and adhering 
Governments. 

[Signatures omitted.] 

3. Schedule to the International Whaling Convention, 1946, Re- 
vised to Include the Amendments that Came Into Operation 
After the Sixth (Tokyo) and Seventh (Moscow) Meetings 

7th March, 1956 

SCHEDULE 

(As amended by the Commission at its first, second, third, fourth, fifth, sixth 
and seventh meetings and subsequently brought into force.) 

1. (a) There shall be maintained on each factory ship at least 
two inspectors of whaling for the purpose of maintaining twenty- 
four hour inspection. These inspectors shall be appointed and paid 
by the Government having jurisdiction over the factory ship. 

(b) Adequate inspection shall be maintained at each land 
station. The inspectors serving at each land station shall be 
appointed and paid by the Government having jurisdiction over 
the land station. 

2. It is forbidden to take or kill gray whales or right whales, 
except when the meat and products of such whales are to be used 
exclusively for local consumption by the aborigines. 

3. It is forbidden to take or kill calves or suckling whales or 
female whales which are accompanied by calves or suckling whales. 

4. (1) It is forbidden to kill or attempt to kill blue whales in 
the North Atlantic Ocean for a period of five years. 1 

(2) It is forbidden to use a whale catcher attached to a 
factory ship for the purpose of killing or attempting to kill baleen 
whales in any of the following areas : 

(a) in the waters north of 66° North Latitude except that 



1 This paragraph was objected to within the prescribed period ending 7th 
November 1954, by the Government of Iceland, and subsequently by that 
of Denmark. Neither objection was withdrawn and the paragraph came 
into force on 24th February, 1955, but is not binding on Iceland and Den- 
mark. It ceases to operate as from 24th February, 1960. 



307 

from 150° East Longitude eastwards as far as 140° West Longi- 
tude the taking or killing of baleen whales by a factory ship or 
whale catcher shall be permitted between 66° North Latitude and 
72° North Latitude ; 

(b) in the Atlantic Ocean and its dependent waters north 
of 40° South Latitude; 

(c) in the Pacific Ocean and its dependent waters east of 
150° West Longitude between 40° South Latitude and 35° North 
Latitude ; 

(d) in the Pacific Ocean and its dependent waters west of 
150° West Longitude between 40° South Latitude and 20° North 
Latitude ; 

(e) in the Indian Ocean and its dependent waters north of 
40° South Latitude. 

5. It is forbidden to use a whale catcher attached to a factory 
ship for the purpose of killing or attempting to kill baleen whales 
in the waters south of 40° South Latitude from 70° West 
Longitude westward as far as 160° West Longitude. [This article, 
as the result of the seventh meeting at Moscow, was rendered 
inoperative for a period of three years from 8th November, 1955, 
after which it will automatically become operative again (8th 
November, 1958).] 

6. (1) It is forbidden to kill or attempt to kill humpback whales 
in the North Atlantic Ocean for a period of five years. 

(2) It is forbidden to kill or attempt to kill humpback whales 
in the waters south of 40° South Latitude between 0° Longitude 
and 70° West Longitude for a period of five years. 

(3) It is forbidden to use a whale catcher attached to a 
factory ship for the purpose of killing or attempting to kill hump- 
back whales in any waters south of 40° South Latitude except on 
the 1st, 2nd, 3rd and 4th February in any year. 

7. (a) It is forbidden to use a whale catcher attached to a 
factory ship for the purpose of killing or attempting to kill baleen 
whales (excluding minke whales) in any waters south of 40° 
South Latitude, except during the period from 7th January to 
7th April, following, both days inclusive; and no such whale 
catcher shall be used for the purpose of killing or attempting to 
kill blue whales before the 1st February in any year. 

(b) It is forbidden to use a whale catcher attached to a 
factory ship for the purpose of killing or attempting to kill sperm 
or minke whales, except as permitted by the Contracting Govern- 
ments in accordance with sub-paragraphs (c), (d) and (e) of this 
paragraph. 

(c) Each Contracting Government shall declare for all 



308 

factory ships and whale catchers attached thereto under its juris- 
diction, one continuous open season not to exceed eight months 
out of any period of twelve months during which the taking or 
killing of sperm whales by whale catchers may be permitted; 
provided that a separate open season may be declared for each 
factory ship and the whale catchers attached thereto. 

(d) Each Contracting Government shall declare for all 
factory ships and whale catchers attached thereto under its 
jurisdiction one continuous open season not to exceed six months 
out of any period of twelve months during which the taking or 
killing of minke whales by the whale catchers may be permitted. 

Provided that : 

(i) a separate open season may be declared for each 
factory ship and the whale catchers attached thereto : 

(ii) the open season need not necessarily include the whole 
or any part of the period declared for other baleen 
whales pursuant to sub-paragraph (a) of this para- 
graph. 

(e) Each Contracting Government shall declare for all whale 
catchers under its jurisdiction not operating in conjunction with 
a factory ship or land station one continuous open season not to 
exceed six months out of any period of twelve months during which 
the taking or killing of minke whales by such whale catchers may 
be permitted. 

8. (a) The number of baleen whales taken during the open 
season caught in any waters south of 40° South Latitude by whale 
catchers attached to factory ships under the jurisdiction of the 
Contracting Governments shall not exceed fifteen thousand blue- 
whale units in the season 1955-56 and fourteen thousand five 
hundred blue-whale units thereafter. 2 

(b) For the purposes of sub-paragraph (a) of this para- 
graph, blue-whale units shall be calculated on the basis that one 
blue whale equals: 

(1) Two fin whales or 

(2) Two and a half humpback whales or 

(3) Six sei whales. 

(c) Notification shall be given in accordance with the pro- 



2 The reduction for the season 1955-56 came into operation as from 8th 
November, 1955, and the further reduction thereafter as from 7th March 
1956, but the further reduction is not binding on the Governments of the 
Netherlands, the United Kingdom, Panama, South Africa, Norway, Japan, 
U.S.A. and Canada, who lodged objections within the prescribed period. 



309 

visions of Article VII of the Convention, within two days after 
the end of each calendar week, of data on the number of blue-whale 
units taken in any waters south of 40° South Latitude by all whale 
catchers attached to factory ships under the jurisdiction of each 
Contracting Government ; provided that when the number of blue- 
whale units is deemed by the Bureau of International Whaling 
Statistics to have reached 13,500 in the season 1955-56 and 13,000 
thereafter, * * notification shall be given as aforesaid at the 
end of each day of data on the number of blue-whale units taken. 

(d) If it appears that the maximum catch of whales per- 
mitted by sub-paragraph (a) of this paragraph may be reached 
before 7th April of any year, the Bureau of International Whaling 
Statistics shall determine, on the basis of the data provided, the 
date on which the maximum catch of whales shall be deemed to 
have been reached and shall notify the master of each factory ship 
and each Contracting Government of that date not less than four 
days in advance thereof. The killing or attempting to kill baleen 
whales by whale catchers attached to factory ships shall be illegal 
in any waters south of 40° South Latitude after midnight of 
the date so determined. 

(e) 3 Notification shall be given in accordance with the pro- 
visions of Article VII of the Convention of each factory ship 
intending to engage in whaling operations in any waters south of 
40° South Latitude. 

9. (a) It is forbidden to take or kill any blue, sei or humpback 
whales below the following lengths : 

Blue whales 70 feet (21.3 metres) 
Sei whales 40 feet (12.2 metres) 
Humpback whales 35 feet (10.7 metres) 

except that blue whales of not less than 65 feet (19.8 metres) 
and sei whales of not less than 35 feet (10.7 metres) in length 
may be taken for delivery to land stations, provided that the meat 
of such whales is to be used for local consumption as human or 
animal food. 

(b) It is forbidden to take or kill any fin whales below 57 feet 
(17.4 metres) in length for delivery to factory ships or land 
stations in the Southern Hemisphere, and it is forbidden to take 
or kill fin whales below 55 feet (16.8 metres) for delivery to 



3 Note.— Paragraph (e) which followed in earlier copies was deleted by the 
Commission at its fourth meeting in 1952 and the deletion became effective 
on 12th September, 1952. Original paragraph (f) consequently becomes 
paragraph (e). 



310 

factory ships or land stations in the Northern Hemisphere ; except 
that fin whales of not less than 55 feet (16.8 metres) may be taken 
for delivery to land stations in the Southern Hemisphere and fin 
whales of not less than 50 feet (15.2 metres) may be taken for 
delivery to land stations in the Northern Hemisphere provided 
in each case that the meat of such whales is to be used for local 
consumption as human or animal food. 

(c) It is forbidden to take or kill any sperm whales below 
38 feet (11.6 metres) in length, except that sperm whales of not 
less than 35 feet (10.7 metres) in length may be taken for delivery 
to land stations. 

(d) Whales must be measured when at rest on deck or plat- 
form, as accurately as possible by means of a steel tape fitted at 
the zero end with a spiked handle which can be stuck into the deck 
planking abreast of one end of the whale. The tape measure shall be 
stretched in a straight line parallel with the whale's body and read 
abreast the other end of the whale. The ends of the whale, for 
measurement purposes, shall be the point of the upper jaw and the 
notch between the tail flukes. Measurements after being accurately 
read on the tape measure, shall be logged to the nearest foot, that 
is to say, any whale between 75 feet 6 inches and 76 feet 6 inches 
shall be logged as 76 feet, and any whale between 76 feet 6 inches 
and 77 feet 6 inches shall be logged as 77 feet. The measurement 
of any whale which falls on an exact half foot shall be logged at 
the next half foot, e.g. 76 feet 6 inches precisely shall be logged as 
77 feet. 

10. (a) It is forbidden to use a whale catcher attached to a land 
station for the purpose of killing or attempting to kill baleen and 
sperm whales except as permitted by the Contracting Government 
in accordance with sub-paragraphs (b), (c) and (d) of this 
paragraph. 

(b) Each Contracting Government shall declare for all land 
stations under its jurisdiction, and whale catchers attached to such 
land stations, one open season during which the taking or killing 
of baleen (excluding minke) whales by the whale catchers shall be 
permitted. Such open season shall be for a period of not more than 
six consecutive months in any period of twelve months and shall 
apply to all land stations under the jurisdiction of the Contracting 
Government ; provided that a separate open season may be declared 
for any land station used for the taking or treating of baleen 
(excluding minke) whales which is more than 1,000 miles from 
the nearest land station used for the taking or treating of baleen 
(excluding minke) whales under the jurisdiction of the same 
Contracting Government. 



311 

(c) 4 Each Contracting Government shall declare for all land 
stations under its jurisdiction, and for whale catchers attached to 
such land stations, one open season not to exceed eight continuous 
months in any one period of twelve months, during which the 
taking or killing of sperm whales by the whale catchers shall be 
permitted, such period of eight months to include the whole of the 
period of six months declared for baleen whales (excluding minke 
whales) as provided for in sub-paragraph (b) of this paragraph; 
provided that a separate open season may be declared for any land 
station used for the taking or treating of sperm whales which is 
more than 1,000 miles from the nearest land station used for the 
taking or treating of sperm whales under the jurisdiction of the 
same Contracting Government. 

(d) Each Contracting Government shall declare for all land 
stations under its jurisdiction and for whale catchers attached to 
such land stations one open season not to exceed six continuous 
months in any period of twelve months during which the taking 
or killing of minke whales by the whale catchers shall be permitted 
(such period not being necessarily concurrent with the period 
declared for other baleen whales, as provided for in sub-paragraph 
(b) of this paragraph) ; provided that a separate open season may 
be declared for any land station used for the taking or treating 
of minke whales which is more than 1,000 miles from the nearest 
land station used for the taking or treating of minke whales under 
the jurisdiction of the same Contracting Government. 

Except that a separate open season may be declared for any 
land station used for the taking or treating of minke whales which 
is located in an area having oceanographic conditions clearly dis- 
tinguishable from those of the area in which are located the other 
land stations used for the taking or treating of minke whales under 
the jurisdiction of the same Contracting Government; but the 
declaration of a separate open season by virtue of the provisions 
of this sub-paragraph shall not cause thereby the period of time 
covering the open seasons declared by the same Contracting 
Government to exceed nine continuous months of any twelve 
months. 

(e) The prohibitions contained in this paragraph shall apply 
to all land stations as defined in Article II of the Whaling 
Convention of 1946 and to all factory ships which are subject 



4 Note. — This sub-paragraph 10 (c) came into force as from 21st February, 
1952, in respect of all Contracting Governments, except the Commonwealth 
of Australia, who lodged an objection to it within the prescribed period, 
and this objection was not withdrawn. The provisions of this sub-paragraph 
are not therefore binding on the Commonwealth of Australia. 



312 

to the regulations governing the operation of land stations under 
the provisions of paragraph 17 of this Schedule. 

11. It is forbidden to use a factory ship which has been used 
during a season in any waters south of 40° South Latitude for 
the purpose of treating baleen whales, in any other area for the 
same purpose within a period of one year from the termination 
of that season. 

12. (a) It is forbidden to use a factory ship or a land station 
for the purpose of treating any whales (whether or not killed by 
whale catchers under the jurisdiction of a Contracting Govern- 
ment) the killing of which by whale catchers under the jurisdiction 
of a Contracting Government is prohibited by the provisions of 
paragraphs 2, 4, 5, 6, 7, 8 or 10 of this Schedule. 

(b) All other whales (except minke whales) taken shall be 
delivered to the factory ship or land station and all parts of such 
whales shall be processed by boiling or otherwise, except the 
internal organs, whale bone and flippers of all whales, the meat 
of sperm whales and of parts of whales intended for human food 
or feeding animals. 

(c) Complete treatment of the carcases of "Dauhval" and 
of whales used as fenders will not be required in cases where the 
meat or bone of such whales is in bad condition. 

13. (a) The taking of whales for delivery to a factory ship 
shall be so regulated or restricted by the master or person in 
charge of the factory ship that no whale carcase (except of a whale 
used as a fender, which shall be processed as soon as is reasonably 
practicable) shall remain in the sea for a longer period than thirty- 
three hours from the time of killing to the time when it is hauled 
up for treatment. 

(b) Whales taken by all whale catchers, whether for factory 
ships or land stations, shall be clearly marked so as to identify 
the catcher and to indicate the order of catching. 

(c) All whale catchers operating in conjunction with a 
factory ship shall report by radio to the factory ship : 

(1) The time when each whale is taken 

(2) Its species, and 

(3) Its marking effected pursuant to subparagraph (b) of 
this paragraph. 

(d) The information reported by radio pursuant to sub- 
paragraph (c) of this paragraph shall be entered immediately in 
a permanent record which shall be available at all times for 
examination for the whaling inspectors; and in addition there 
shall be entered in such permanent record the following informa- 
tion as soon as it becomes available ; 



313 

(1) Time of hauling up for treatment, 

(2) Length, measured pursuant to sub-paragraph (d) of 
paragraph 9, 

(3) Sex, 

(4) If female, whether milk-filled or lactating, 

(5) Length and sex of foetus, if present, and 

(6) A full explanation of each infraction. 

(e) A record similar to that described in sub-paragraph (d) 
of this paragraph shall be maintained by land stations, and all 
of the information mentioned in the said sub-paragraph shall be 
entered therein as soon as available. 

14. Gunners and crews of factory ships, land stations, and 
whale catchers, shall be engaged on such terms that their 
remuneration shall depend to a considerable extent upon such 
factors as the species, size and yield of whales taken and not 
merely upon the number of the whales taken. No bonus or other 
remuneration shall be paid to the gunners or crews of whale 
catchers in respect of the taking of milk-filled or lactating whales. 

15. Copies of all official laws and regulations relating to whales 
and whaling and changes in such laws and regulations shall be 
transmitted to the Commission. 

16. Notification shall be given in accordance with the provisions 
of Article VII of the Convention with regard to all factory ships 
and land stations of statistical information (a) concerning the 
number of whales of each species taken, the number thereof lost, 
and the number treated at each factory ship or land station, and 
(b) as to the aggregate amounts of oil of each grade and quantities 
of meal, fertilizer (guano) , and other products derived from them, 
together with (c) particulars with respect to each whale treated 
in the factory ship or land station as to the date and approximate 
latitude and longitude of taking, the species and sex of the whale, 
its length and, if it contains a foetus, the length and sex, is ascer- 
tainable, of the foetus. The data referred to in (a) and (c) above 
shall be verified at the time of the tally and there shall also be 
notification to the Commission of any information which may be 
collected or obtained concerning the calving grounds and migration 
routes of whales. 

In communicating this information there shall be specified : 

(a) The name and gross tonnage of each factory ship 

(b) The number and aggregate gross tonnage of the whale 
catchers 

(c) A list of the land stations which were in operation during 
the period concerned. 

17. (a) A factory ship which operates solely within territorial 



314 

waters in one of the areas specified in sub-paragraph (c) of this 
paragraph, by permission of the Government having jurisdiction 
over those waters, and which flies the flag of that Government 
shall, while so operating, be subject to the regulations governing 
the operation of land stations and not to the regulations governing 
the operation of factory ships. 

(b) Such factory ship shall not, within a period of one year 
from the termination of the season in which she so operated, be 
used for the purpose of treating baleen whales in any of the other 
areas specified in sub-paragraph (c) of this paragraph or south 
of 40° South Latitude. 

(c) The areas referred to in sub-paragraphs (a) and (b) are: 

(1) On the coast of Madagascar and its dependencies 

(2) On the west coasts of French Africa 

(3) On the coasts of Australia, namely on the whole east 
coast and on the west coast in the area known as Shark 
Bay and northward to North-west Cape and including 
Exmouth Gulf and King George's Sound, including 
the Port of Albany. 5 

18. (1) The following expressions have the meanings respec- 
tively assigned to them, that is to say: 

"baleen whale" means any whale which has baleen or 
whale bone in the mouth, i.e. any whale other than a 
toothed whale. 

"blue whale" (Balaenoptera or Sibbaldus musculus) 
means any whale known by the name of blue whale, 
Sibbald's rorqual, or sulphur bottom. 

"dauhval" means any unclaimed dead whale found 
floating. 



5 Note. — This paragraph 17 was inserted by the Commission at its first 
meeting in 1949, and came into force on 11th January, 1950, as regards all 
Contracting Governments except France, who therefore remain bound by 
the provisions of the original paragraph 17, which reads as follows: 

17. Notwithstanding the definition of land station contained in Article 
II of the Convention, a factory ship operating under the jurisdiction of a 
Contracting Government, and the movements of which are confined solely 
to the territorial waters of that Government, shall be subject to the regu- 
lations governing the operation of land stations within the following areas: 

(a) on the coast of Madagascar and its dependencies, and on the 
west coasts of French Africa; 

(b) on the west coast of Australia in the area known as Shark Bay 
and northward to Northwest Cape and including Exmouth Gulf 
and King George's Sound, including the port of Albany; and on 
the east coast of Australia, in Twofold Bay and Jervis Bay. 



315 

"fin whale" (Balaenoptera physalus) means any whale 

known by the name of common finback, common rorqual, 
finback, finner, fin whale, herring whale, razorback, or 
true fin whale. 

"gray whale" (Rhachianectes glaucus) means any 
whale known by the name of gray whale, California gray, 
devil fish, hard head, mussel digger, gray back or rip sack. 

"humpback whale" (Megaptera nodosa or novaeang- 
liae) means any whale known by the name of bunch, 
humpback, humpback whale, humpbacked whale, hump 
whale or hunchbacked whale. 

"minke whale" (Balaenoptera acutoro strata, B. David- 
soni, B. huttoni) means any whale known by the name of 
lesser rorqual, little piked whale, minke whale, pike- 
headed whale or sharp headed finner. 

"right whale" (Balaen/i mysticetus; Eubalaena gla- 
cialis, E. australis, etc.; Neobalaena marginata) means 
any whale known by the name of Atlantic right whale, 
Arctic right whale, Biscayan right whale, bowhead, great 
polar whale, Greenland right whale, Greenland whale, 
Xordkaper, North Atlantic right whale, North Cape 
whale, Pacific right whale, pigmy right whale, Southern 
pigmy right whale, or Southern right whale. 

"sei whale" (Balaenoptera borealis) means any whale 
known by the name of sei whale, Rudolphi's rorqual, 
pollack whale, or coalfish whale and shall be taken to 
include Bryde's whale (B. brydei) . 

"sperm whale" (Physeter catodon) means any whale 
known by the name of sperm whale, spermacet whale, 
cachalot or pot whale. 

"toothed whale" means any whale which has teeth in 
the jaws. 

(2) "Whales taken" means whales that have been killed and 
either flagged or made fast to catchers. 

♦ * * * * * * 

B. North Atlantic 

1. International Council for the Exploration of the Sea (1902). 
Statutes of the Council as revised 1950 

a. Note. This Council was the first of the fishery conservation organiza- 
tions. Its primary interest is in the North Sea and the Baltic stocks. Its first 
meeting was in Copenhagen in 1902. It gives scientific advice to the parties 



316 

to the 1946 Overfishing Convention, infra, as well as to its own members. 
It served as a basis for subsequent conservation efforts. For an illuminating 
survey of the problems of conservation and the organizations for conserva- 
tion, see Herrington and Kask, A/Conf. 10/7, pages 145-166 (1956). For the 
text of the Convention for Regulating the Police of the North Sea Fisheries, 
to which this Council is closely related, see U. N. Leg. Series I, (1951), at 
pages 179-185. The text below is taken from the Council's own publication. 



b. STATUTES OF THE COUNCIL AS REVISED 1950 

Preamble. The International Council for the Exploration of 
the Sea is charged with the execution of the programme for the 
international investigation of the sea, adopted at the Conference 
held in Stockholm (1899) and Christiania (1901) and subse- 
quently modified at meetings of the Council, with the approval of 
the participating Governments. 

Its main functions are to encourage all investigations for the 
study of the sea and to co-ordinate the operations to this end 
of the participating Governments. 

Its area of operation may be roughly denned as the eastern 
North Atlantic Ocean and contiguous or adjacent seas, including 
Greenlandic and Icelandic waters. 

Article 1. The Council consists of Delegates appointed by the 
Governments interested. Each Government appoints two Delegates 
who may be represented at meetings by substitutes. They may be 
accompanied by experts who, however, are not entitled to vote. 

Article 2. The votes of the participating Delegates shall be 
counted in such a manner that two votes shall be reckoned for each 
State represented on the Council, even if only one Delegate em- 
powered to vote for any State shall be present. The resolutions 
shall be decided by simple majority, the vote being taken orally. 

Article 3. The engagements of the participating States are 
effective for five years, renewable in the last year of the quin- 
quennial period. New States may be admitted to the Council with 
the unanimous approval of the participating States. The engage- 
ments of the States which have entered during a quinquennial 
period are effective until the end of that period. 

Article 4. The rates of contributions to the expenses of the 
Council are decided by the Governments concerned. The contri- 
butions are due on the 22nd of July of each year in respect of the 
ensuing financial year. 

Article 5. The Estimates and the Accounts of Expenditure 
run from the 1st of November to the 31st of October. 

Article 6. Unless and until the participating Governments 
decide otherwise, the seat of the Council is at Copenhagen. The 



317 

office with the necessary personnel is also at Copenhagen, and 
normally the meetings of the Council are held there. 

The Danish Government has undertaken, if so requested by the 
Council, to be the medium of communication between the Council 
and the participating States in respect of the renewal of participa- 
tion of those States, the admission of new States and the receipt 
of the contributions of the participating States and their payment 
to the Council. 

Article 7. The International Council for the Exploration of 
the Sea is a deliberative body, the executive authority of which is 
vested in the Bureau consisting of the President and four Vice- 
Presidents appointed annually by the Council from among its 
members. The Bureau is entitled to correspond directly with the 
Governments of the participating States. 

Article 8. Subject to the preceding articles the Council draws 
up its own rules of procedure. 

[Rules of Procedures as revised 1950 and Appendices omitted.] 

2. Convention for the Regulation of Meshes of Fishing Nets and 
the Size Limits of Fish (1946) 

a. Note. A Protocol which postponed the operation of Articles 5, 8, and 
9 of this Convention from 5 April 1953, date of entry into force of the 
Convention, until 5 April 1954, is printed in British Command Paper No. 
8815, with the text of the Convention as an Appendix. The text below is 
taken from this Appendix. The following States, in the order of deposit of 
their ratification, became parties at the times indicated: United Kingdom, 
1 July, 1946; Erie, 2 January, 1950; Belgium, 9 May, 1951; Denmark, 11 
April, 1947; France, 19 January, 1949; Iceland, 7 September, 1951; Nether- 
lands, 10 January, 1948; Norway, 21 July, 1947; Poland, 22 January, 1947; 
Portugal, 13 July, 1950; Spain, 5 February, 1953; Sweden, 7 August, 1946. 
The text is also reprinted in Cmd. 9704, Treaty Series No. 8, 1956. 



b. CONVENTION FOR THE REGULATION OF THE MESHES OF 
FISHING NETS AND THE SIZE LIMITS OF FISH 

London, 5th April, 19^6 

CONVENTION 

PREAMBLE 

The Governments of Belgium, Denmark, Eire, France, Iceland, 
the Netherlands, Norway, Poland, Portugal, Spain, Sweden and 
the United Kingdom of Great Britain and Northern Ireland, 
desiring to conclude a Convention for the Regulation of the Meshes 
of Fishing Nets and the Size Limits of Fish, have agreed as 
follows : — 



318 

Part I. — Extent of the Convention 

Article 1 

The area to which this Convention applies shall be all waters 
which are situated within those parts of the Atlantic and Arctic 
Oceans and their dependent seas which lie north of 48 degrees 
north latitude and between 42 degrees west longitude and 32 
degrees east longitude, but excluding the Baltic Sea and Belts 
lying to the south and east of lines drawn from Hasenore Head to 
Gniben Point, from Korshage to Spodsbierg and from Gilbierg 
Head to the Kullen. 

Article 2 

Nothing in the present Convention shall be deemed to diminish 
the exclusive right of vessels registered or owned in the territory 
of each Contracting Government to fish in waters where that 
Contracting Government has exclusive jurisdiction over fisheries. 

Article 3 

Nothing in this Convention shall be deemed to prejudice the 
claims of any Contracting Government in regard to the limits of 
territorial waters. 

Part II. — Regulation of the Meshes of Fishing Nets and the Size 

Limits of Fish 

Article 4 

Subject to the provisions of Articles 8, 10 and 16(2), the pro- 
visions of this Convention shall apply to all vessels of any Con- 
tracting Government either when they are operating in the waters 
where that Contracting Government has exclusive jurisdiction 
over fisheries, or when they are operating outside such waters. 

Article 5 

No vessel shall carry on board or use any trawl, seine, or other 
net towed or hauled at or near the bottom of the sea, which has 
in any part of the net meshes of less dimensions than those 
specified in the First Annex to this Convention. 

Article 6 

Notwithstanding the provisions of Article 5, vessels fishing for 
mackerel, clupeoid fishes, smelts, eels, great weevers (Trachinus 
draco), shrimps, prawns, nephrops or molluscs, may carry on 
board and use nets having meshes of dimensions less than those so 
specified: provided that (a) any fishing instruments used by such 



319 

vessels for the capture of any of the fish described in this Article 
shall not be used for the purpose of capturing other kinds of fish ; 
and (b) any fish of the descriptions set out in the Second Annex 
to this Convention which may be captured by such instruments and 
are of less than the minimum sizes prescribed therein shall be 
returned to the sea immediately after capture. 

Article 7 

(1) No vessel while operating shall use any device by means 
of which the mesh in any part of a fishing net to which Article 
5 of this Convention applies is obstructed or otherwise in effect 
diminished. 

(2) Notwithstanding the provisions of the foregoing paragraph, 
it shall not be deemed to be unlawful to attach to the underside 
of the cod-end of a trawl net any canvas, netting, or other material, 
for the purpose of preventing or reducing wear and tear. 

Article 8 

No vessel shall retain on board any sea fish of the descriptions 
set out in the Second Annex to this Convention, of a less size than 
the size prescribed therein for each fish, and all such fish shall be 
returned immediately to the sea; provided that they may be 
retained on board for the purpose of transplantation to other 
fishing grounds. 

Article 9 

Each Contracting Government undertakes to prohibit by regula- 
tions the landing, sale, exposure or offer for sale, in its territories 
of any sea fish of the descriptions set out in the Second Annex 
to this Convention which are of a less size than the size prescribed 
therein for each fish and have been caught in the waters defined 
in Article 1 of this Convention, whether such fish are whole or 
have had their heads or any other part removed. 

Article 10 

The provisions of this Convention shall not apply to fishing 
operations conducted for the purposes of scientific investigation, 
or to fish taken in the course of such operations, but fish so taken 
shall not be sold, or exposed or offered for sale in contravention 
of the provisions of Article 9. 

Article 11 

The Contracting Governments agree to take, in their territories 
and in regard to their vessels, to which this Convention applies, 
appropriate measures to ensure the application of the provisions 



320 

of this Convention and the punishment of infractions of the said 
provisions. 

Part III. — Constitution of Permanent Commission 

Article 12 

(1) The Contracting Governments undertake to set up a per- 
manent Commission to which each of them shall appoint one or if 
they so desire two delegates. 

(2) The Commission shall elect its own President either from 
among the delegates or from independent nominees. If a delegate 
has been elected President he shall forthwith cease to be the 
delegate of his Government and that Government shall have the 
right to appoint another person to serve as its delegate. 

(3) The Commission shall draw up its own rules of procedure 
including provisions for the term of office of the President and 
the election of subsequent Presidents and such rules may be altered 
or amended from time to time by a majority of the delegates of 
Contracting Governments who are present and vote. Only in the 
case of an even division of votes on any such matter shall the 
President have a casting vote and it shall be decisive. 

(4) For the purpose of voting on all matters within the scope 
of this article each Contracting Government shall possess one vote, 
whether it has appointed one delegate or two, but the vote may be 
exercised by either delegate. 

(5) It shall be the duty of this Commission to consider whether 
the provisions of this Convention should be extended or altered. 
For this purpose the Commission shall where practicable consult 
the International Council for the Exploration of the Sea. 

(6) The Government of the United Kingdom of Great Britain 
and Northern Ireland undertakes to call the first meeting of this 
Commission in the United Kingdom within two years from the 
coming into force of this Convention, and to call subsequent meet- 
ings at the request of the President at such time and in such places 
as the Commission shall decide. 

(7) There shall be a meeting of the Commission not less than 
once in every three years. 

(8) The Government of the United Kingdom of Great Britain 
and Northern Ireland undertakes to communicate the agenda for 
the first meeting to all other Contracting Governments not less 
than one month before the date of the meeting. 

(9) Reports of the proceedings of the Commission shall be 
transmitted by the President of the Commission to the Government 
of the United Kingdom of Great Britain and Northern Ireland, 



321 

which shall in turn communicate them to all the Governments 
which have ratified or acceded to this Convention. 

(10) The Contracting Governments undertake to give effect to 
any recommendation of the Commission for the extension or 
alteration of this Convention which has been carried unanimously 
at a meeting of the Commission and accepted by all Contracting 
Governments not represented at the meeting. 

Article 13 

(1) For the purposes of this Convention the expression "vessel" 
means — 

(a) any vessel or boat employed in fishing for sea fish or in 
the treatment of sea fish ; or 

(b) any vessel or boat used partly or wholly for the purpose 
of the transport of sea fish 

registered or owned in the territories of any Contracting Govern- 
ment. 

(2) The expression "territories" denotes in relation to any 
Contracting Government — 

(a) its metropolitan territory; 

(b) any territory in respect of which action has been taken 
by the Contracting Government under Article 16 ; and 

(c) the waters where the Contracting Government has 
exclusive jurisdiction over fisheries. 

Article 14 

This Convention shall be ratified as soon as possible and shall 
come into force x two months after the deposit of instruments of 
ratification by all the Governments which have signed the Con- 
vention, or upon such earlier date as may be agreed between any 
Governments which may ratify or accede to it under Article 15 
in respect of those Governments. 

Article 15 

(1) Any Government (other than the Government of a territory 
to which Article 16 applies) which has not signed this Convention 
may accede thereto at any time after it has come into force in 
accordance with Article 14. Accession shall be effected by means of 
a notification in writing addressed to the Government of the 
United Kingdom of Great Britain and Northern Ireland, and shall 
take effect immediately after the date of its receipt. 

(2) The Government of the United Kingdom will inform all the 



1 5th April, 1953, with the exception of Articles 5, 8 and 9. 



322 

Governments which have signed or acceded to the present Con- 
vention of all accessions received and the date of their receipt. 

Part IV. — General 

Article 16 

(1) A Contracting Government may, at the time of signature, 
ratification, accession or thereafter, by a declaration in writing 
addressed to the Government of the United Kingdom of Great 
Britain and Northern Ireland, declare its desire that the present 
Convention shall apply to all or any of its colonies, overseas 
territories, protectorates or territories under mandate or trustee- 
ship, and this Convention shall apply to all the territories named 
in such declaration, and to vessels registered or owned therein 
three months after the receipt of the declaration by the Govern- 
ment of the United Kingdom. 

(2) In the absence of such declaration, the Convention shall 
not apply to any such territory. 

(3) A Contracting Government may at any time, by a notifica- 
tion in writing addressed to the Government of the United 
Kingdom, express its desire that the present Convention shall 
cease to apply to all or any of its colonies, overseas territories, 
protectorates or territories under mandate or trusteeship, to which 
the present Convention shall have been made applicable under the 
provisions of paragraph (1) of this article, and the Convention 
shall cease to apply to the territories named in the notification and 
to vessels registered or owned therein three months after the 
receipt of the notification by the Government of the United 
Kingdom. 

(4) The Government of the United Kingdom will inform all the 
Governments which have signed or acceded to the present Con- 
vention of any declaration or notification received under para- 
graphs (1) and (3) of this article stating in each case the date 
from which the present Convention has become or will cease to be 
applicable to the territory or territories specified in the declaration 
or notification, as the case may be. 

Article 17 

As from the date of the coming into force of this Convention, 
the provisions of the International Convention for the Regulation 
of the Meshes of Fishing Nets and the Size Limits of Fish, signed 
in London on the 23rd March 1937, 2 shall, as far as they have been 



2 Miscellaneous No. 5 (1937), Cmd. 549 %. 



323 

or are applied by any Contracting Government which was a party 
to that Convention, be replaced by the provisions of this Con- 
vention. 

Article 18 

After the expiration of three years from the date of its coming 
into force in accordance with Article 14, this Convention may be 
denounced by means of a notification in writing addressed to the 
Government of the United Kingdom of Great Britain and 
Northern Ireland. The denunciation shall take effect in respect 
of the Government by which it is made three months after the date 
of its receipt, and will be notified to the Contracting Governments 
by the Government of the United Kingdom. 

In witness whereof the undersigned, duly authorized thereto, 
have signed the present Convention. 

Done in London the 5th day of April, 1946, in a single copy in 
the English language. A French text of the Convention shall be 
prepared and after approval by all the signatory Governments 
shall be regarded as being of equal validity to the English text. 
Both texts of the Convention shall thereupon be deposited in the 
archives of the Government of the United Kingdom of Great 
Britain and Northern Ireland. 

Certified copies of the Convention shall be communicated to the 
signatory and acceding Governments. 

[Signatures omitted] 

ANNEX I 

(1) In all waters covered by the Convention, as defined in 
Article 1 and Article 4, except as provided in paragraph (2) below, 
the minimum size of mesh for nets referred to in Article 5 shall 
be such that when the mesh is stretched diagonally lengthwise of 
the net a flat gauge 80 mm. broad and 2 mm thick shall pass 
through it easily when the net is wet. 

(2) In the waters situated north of 66 degrees north latitude 
and east of the meridian of Greenwich and in Icelandic waters 
between the parallels of 68 degrees and 62 degrees north latitude 
and between the meridians of 28 degrees and 10 degrees west 
longitude, the minimum size of mesh for nets referred to in Article 
5 shall be such that when the mesh is stretched diagonally length- 
wise of the net a flat gauge 110 mm. broad and 2 mm. thick shall 
pass through it easily when the net is wet. 

ANNEX II 
The fish to which Articles 6, 8 and 9 of this Convention apply 



324 

and the sizes below which such fish may not be retained on board, 
landed, or sold and exposed or offered for sale are as follows : 

Size limit for whole Fish 
measured from tip of snout 
to extreme end of tail fin 
Fish Cm. 

Cod (Gadus callarias) 30 

Haddock (Gadus aegleftnus) 27 

Hake (Merluccius merluccius) 30 

Plaice (Pleuronectes platessa) 25 

Witches (Glyptocephalus cynoglossus) 28 

Lemon soles (Microstomus kitt) 25 

Soles (Solea solea) 24 

Turbot (Scophthalmus maximus) 30 

Brill (Scophthalmus rhombus) 30 

Megrims (Lepidorhombus whiff) 25 

Whitings (Gadus merlangus) 20 

Dabs (Pleuronectes limanda) 20 

3. International Convention for the North- West Atlantic 

Fisheries (1949) 

a. Note. Prior to this Convention, there was a North American Council 
on Fishery Investigations, which was active from 1920 to 1938, and which 
was organized by Canada, Newfoundland, the United States and France, for 
coordinating research on the area. The 1949 Convention entered into force 
on 3 July 1950. As of October 31, 1955, Canada, Denmark, France with a 
declaration, Iceland, Italy, Norway, Portugal, Spain with a declaration, the 
United Kingdom, and the United States had become parties. Treaties in 
Force, page 160. The Federal Republic of Germany adhered to the Conven- 
tion on 27 June 1957. The text may be found in 1 UST 477; TIAS 2089, and 
157 UNTS 157. The Convention was signed at Washington, 8 February 1949 ; 
ratification was advised by the Senate, 17 August 1949; ratified by the Presi- 
dent, 1 September 1949; deposited by the United States, 1 September 1949; 
and proclaimed by the President, 17 July 1950. The text is also reprinted in 
45 A.J.I.L., Supp., 1951, pages 40-50. The text below is taken from British 
Command Paper No. 8071. A Protocol amending the Convention in order to 
permit the holding of annual meetings outside of North America was signed 
at Washington, 25 June 1956. As of August 1957, it is not yet in force. It 
awaits ratifications by France. All other parties have ratified, and the Federal 
Republic of Germany has adhered. 

b. INTERNATIONAL CONVENTION FOR THE NORTH-WEST ATLANTIC 

FISHERIES 

Washington, 8th February, 19J+9 

The Governments whose duly authorized representatives have 
subscribed hereto, sharing a substantial interest in the conserva- 
tion of the fishery resources of the North-West Atlantic Ocean, 
have resolved to conclude a Convention for the investigation, 
protection and conservation of the fisheries of the North-West 



325 

Atlantic Ocean, in order to make possible the maintenance of a 
maximum sustained catch from those fisheries and to that end 
have, through their duly authorized representatives, agreed as 
follows : 

Article I 

1. The area to which this Convention applies, hereinafter 
referred to as 'the Convention area,' shall be all waters, except 
territorial waters, bounded by a line beginning at a point on the 
coast of Rhode Island in 71° 40' west longitude ; thence due south 
to 39° 00' north latitude ; thence due east to 42° 00' west longitude ; 
thence due north to 59° 00' north latitude; thence due west to 
44° 00' west longitude ; thence due north to the coast of Greenland ; 
thence along the west coast of Greenland to 78° 10' north latitude ; 
thence southward to a point in 75° 10' north latitude and 73° 30' 
west longitude; thence along a rhumb line to a point in 69° 00' 
north latitude and 59° 00' west longitude; thence due south to 
61° 00' north latitude; thence due west to 64° 30' west longitude; 
thence due south to the coast of Labrador ; thence in a southerly 
direction along the coast of Labrador to the southern terminus of 
its boundary with Quebec; thence in a westerly direction along 
the coast of Quebec, and in an easterly and southerly direction 
along the coasts of New Brunswick, Nova Scotia, and Cape Breton 
Island to Cabot Strait; thence along the coasts of Cape Breton 
Island, Nova Scotia, New Brunswick, Maine, New Hampshire, 
Massachusetts, and Rhode Island to the point of beginning. 

2. Nothing in this Convention shall be deemed to affect adversely 
(prejudice) the claims of any Contracting Government in regard 
to the limits of territorial waters or to the jurisdiction of a 
coastal state over fisheries. 

3. The Convention area shall be divided into five sub-areas, the 
boundaries of which shall be those defined in the Annex to this 
Convention, subject to such alterations as may be made in accord- 
ance with the provisions of paragraph 2 of Article VI. 

Article II 

1. The Contracting Governments shall establish and maintain a 
Commission for the purposes of this Convention. The Commission 
shall be known as the International Commission for the North- 
West Atlantic Fisheries, hereinafter referred to as 'the Com- 
mission.' 

2. Each of the Contracting Governments may appoint not more 
than three Commissioners and one or more experts or advisers 
to assist its Commissioner or Commissioners. 



326 

3. The Commission shall elect from its members a Chairman and 
a Vice Chairman, each of whom shall serve for a term of two 
years and shall be eligible for re-election but not to a succeeding 
term. The Chairman and Vice Chairman must be Commissioners 
from different Contracting Governments. 

4. The seat of the Commission shall be in North America at a 
place to be chosen by the Commission. 

5. The Commission shall hold a regular annual meeting at its 
seat or at such place in North America as may be agreed upon by 
the Commission. 

6. Any other meeting of the Commission may be called by the 
Chairman at such time and place as he may determine, upon the 
request of the Commissioner of a Contracting Government and 
subject to the concurrence of the Commissioners of two other 
Contracting Governments, including the Commissioner of a 
Government in North America. 

7. Each Contracting Government shall have one vote which may 
be cast by any Commissioner from that Government. Decisions of 
the Commission shall be taken by a two-thirds majority of the 
votes of all the Contracting Governments. 

8. The Commission shall adopt, and amend as occasion may 
require, financial regulations and rules and by-laws for the conduct 
of its meetings and for the exercise of its functions and duties. 

Article III 

1. The Commission shall appoint an Executive Secretary accord- 
ing to such procedure and on such terms as it may determine. 

2. The Staff of the Commission shall be appointed by the 
Executive Secretary in accordance with such rules and procedures 
as may be determined and authorized by the Commission. 

3. The Executive Secretary shall, subject to the general super- 
vision of the Commission, have full power and authority over the 
staff and shall perform such other functions as the Commission 
shall prescribe. 

Article IV 

1. The Contracting Governments shall establish and maintain 
a Panel for each of the sub-areas provided for by Article I, in 
order to carry out the objectives of this Convention. Each Con- 
tracting Government participating in any Panel shall be repre- 
sented on such Panel by its Commissioner or Commissioners, who 
may be assisted by experts or advisers. Each Panel shall elect 
from its members a Chairman who shall serve for a period of two 



327 

years and shall be eligible for re-election but not to a succeeding 
term. 

2. After this Convention has been in force for two years, but 
not before that time, Panel representation shall be reviewed 
annually by the Commission, which shall have the power, subject 
to consultation with the Panel concerned, to determine representa- 
tion on each Panel on the basis of current substantial exploitation 
in the sub-area concerned of fishes of the cod group (Gadiformes) , 
or flatfishes (Pleuronectiformes), and "of rosefish (genus 
Sebastes) , except that each Contracting Government with coast- 
line adjacent to a sub-area shall have the right of representation 
on the Panel for the sub-area. 

3. Each Panel may adopt, and amend as occasion may require, 
rules of procedure and by-laws for the conduct of its meetings and 
for the exercise of its functions and duties. 

4. Each Government participating in a Panel shall have one 
vote, which shall be cast by a Commissioner representing that 
Government. Decisions of the Panel shall be taken by a two-thirds 
majority of the votes of all the Governments participating in that 
Panel. 

5. Commissioners of Contracting Governments not participating 
in a particular Panel shall have the right to attend the meetings 
of such Panel as observers, and may be accompanied by experts 
and advisers. 

6. The Panels shall, in the exercise of their functions and duties, 
use the services of the Executive Secretary and the staff of the 
Commission. 

Article V 

1. Each Contracting Government may set up an Advisory 
Committee composed of persons, including fishermen, vessel own- 
ers and others, well informed concerning the problems of the 
fisheries of the North-West Atlantic Ocean. With the assent of 
the Contracting Government concerned, a representative or 
representatives of an Advisory Committee may attend as ob- 
servers all non-executive meetings of the Commission or of any 
Panel in which their Government participates. 

2. The Commissioners of each Contracting Government may 
hold public hearings within the territories they represent. 

Article VI 

1. The Commission shall be responsible in the field of scientific 
investigation for obtaining and collating the information necessary 



328 

for maintaining those stocks of fish which support international 
fisheries in the Convention area and the Commission may, through 
or in collaboration with agencies of the Contracting Governments 
or other public or private agencies and organizations or, when 
necessary, independently — 

(a) make such investigations as it finds necessary into the 
abundance, life history and ecology of any species of aquatic life 
in any part of the North-West Atlantic Ocean ; 

(b) collect and analyse statistical information relating to the 
current conditions and trends of the fishery resources of the 
Northwest Atlantic Ocean; 

(c) study and appraise information concerning the methods 
for maintaining and increasing stocks of fish in the North-West 
Atlantic Ocean; 

(d) hold or arrange such hearings as may be useful or 
essential in connection with the development of complete factual 
information necessary to carry out the provisions of this Con- 
vention ; 

(e) conduct fishing operations in the Convention area at any 
time for purposes of scientific investigation ; 

(f ) publish and otherwise disseminate reports of its findings 
and statistical, scientific and other information relating to the 
fisheries of the North-West Atlantic Ocean as well as such other 
reports as fall within the scope of this Convention. 

2. Upon the unanimous recommendation of each Panel affected, 
the Commission may alter the boundaries of the sub-areas set out 
in the Annex. Any such alteration shall forthwith be reported to 
the Depositary Government, which shall inform the Contracting 
Government, and the sub-areas defined in the Annex shall be 
altered accordingly. 

3. The Contracting Governments shall furnish to the Com- 
mission, at such time and in such form as may be required by the 
Commission, the statistical information referred to in paragraph 
1 (b) of this Article. 

Article VII 

1. Each Panel established under Article IV shall be responsible 
for keeping under review the fisheries of its sub-area and the 
scientific and other information relating thereto. 

2. Each Panel, upon the basis of scientific investigations, may 
make recommendations to the Commission for joint action by the 
Contracting Governments on the matters specified in paragraph 
1 of Article VIII. 

3. Each Panel may recommend to the Commission studies and 



329 

investigations within the scope of this Convention which are 
deemed necessary in the development of factual information 
relating to its particular sub-area. 

4. Any Panel may make recommendations to the Commission 
for the alteration of the boundaries of the sub-areas defined in 
the Annex. 

5. Each Panel shall investigate and report to the Commission 
upon any matter referred to it by the Commission. 

6. A Panel shall not incur any expenditure except in accordance 
with directions given by the Commission. 

Article VIII 

1. The Commission may, on the recommendations of one or 
more Panels, and on the basis of scientific investigations, transmit 
to the Depositary Government proposals for joint action by the 
Contracting Governments designed to keep the stocks of those 
species of fish which support international fisheries in the Con- 
vention area at a level permitting the maximum sustained catch 
by the application, with respect to such species of fish, of one or 
more of the following measures : — 

(a) establishing open and closed seasons; 

(b) closing to fishing such portions of a sub-area as the Panel 
concerned finds to be a spawning area or to be populated by small 
or immature fish ; 

(c) establishing size limits for any species; 

(d) prescribing the fishing gear and appliances the use of 
which is prohibited ; 

(e) prescribing an over-all catch limit for any species of fish. 

2. Each recommendation shall be studied by the Commission 
and thereafter the Commission shall either — 

(a) transmit the recommendation as a proposal to the 
Depositary Government with such modifications or suggestions as 
the Commission may consider desirable, or 

(b) refer the recommendation back to the Panel with com- 
ments for its reconsideration. 

3. The Panel may, after reconsidering the recommendation 
returned to it by the Commission, reaffirm that recommendation, 
with or without modification. 

4. If, after a recommendation is reaffirmed, the Commission is 
unable to adopt the recommendation as a proposal, it shall send 
a copy of the recommendation to the Depositary Government with 
a report of the Commission's decision. The Depositary Govern- 
ment shall transmit copies of the recommendation and of the 
Commission's report to the Contracting Governments. 



330 

5. The Commission may, after consultation with all the Panels, 
transmit proposals to the Depositary Government within the 
scope of paragraph 1 of this Article affecting the Convention area 
as a whole. 

6. The Depositary Government shall transmit any proposal 
received by it to the Contracting Governments for their considera- 
tion and may make such suggestions as will facilitate acceptance 
of the proposal. 

7. The Contracting Governments shall notify the Depositary 
Governments of their acceptance of the proposal, and the De- 
positary Government shall notify the Contracting Governments 
of each acceptance communicated to it, including the date of receipt 
thereof. 

8. The proposal shall become effective for all Contracting 
Governments four months after the date on which notifications of 
acceptance shall have been received by the Depositary Government 
from all the Contracting Governments participating in the Panel 
or Panels for the sub-area or sub-areas to which the proposal 
applies. 

9. At any time after the expiration of one year from the date 
on which a proposal becomes effective, any Panel Government for 
the sub-area to which the proposal applies may give to the 
Depositary Government notice of the termination of its acceptance 
of the proposal and, if that notice is not withdrawn, the proposal 
shall cease to be effective for that Panel Government at the end 
of one year from the date of receipt of the notice by the Depositary 
Government. At any time after a proposal has ceased to be effective 
for a Panel Government under this paragraph, the proposal shall 
cease to be effective for any other Contracting Government upon 
the date a notice of withdrawal by such Government is received 
by the Depositary Government. The Depositary Government shall 
notify all Contracting Governments of every notice under this 
paragraph immediately upon the receipt thereof. 

Article IX 

The Commission may invite the attention of any or all Con- 
tracting Governments to any matters which relate to the objectives 
and purposes of this Convention. 

Article X 

1. The Commission shall seek to establish and maintain working 
arrangements with other public international organisations which 
have related objectives, particularly the Food and Agriculture 



331 

Organisation of the United Nations and the International Council 
for the Exploration of the Sea, to ensure effective collaboration 
and co-ordination with respect to their work and, in the case of 
the International Council for the Exploration of the Sea, the 
avoidance of duplication of scientific investigations. 

2. The Commission shall consider, at the expiration of two years 
from the date of entry into force of this Convention, whether or 
not it should recommend to the Contracting Governments that the 
Commission be brought within the framework of a specialised 
agency of the United Nations. 

Article XI 

1. Each Contracting Government shall pay the expenses of the 
Commissioners, experts and advisers appointed by it. 

2. The Commission shall prepare an annual administrative 
budget of the proposed necessary administrative expenditures of 
the Commission and an annual special projects budget of proposed 
expenditures on special studies and investigations to be under- 
taken by or on behalf of the Commission pursuant to Article VI, 
or by or on behalf of any Panel pursuant to Article VII. 

3. The Commission shall calculate the payments due from each 
Contracting Government under the annual administrative budget 
according to the following formula : — 

(a) from the administrative budget there shall be deducted 
a sum of 500 United States dollars for each Contracting Govern- 
ment; 

(b) the remainder shall be divided into such number of equal 
shares as corresponds to the total number of Panel memberships ; 

(c) the payment due from any Contracting Government shall 
be the equivalent of 500 United States dollars plus the number of 
shares equal to the number of Panels in which the Government 
participates. 

4. The Commission shall notify each Contracting Government 
the sum due from that Government as calculated under paragraph 
3 of this Article and as soon as possible thereafter each Contracting 
Government shall pay to the Commission the sum so notified. 

5. The annual special projects budget shall be allocated to the 
Contracting Governments according to a scale to be determined by 
agreement among the Contracting Governments, and the sums so 
allocated to any Contracting Government shall be paid to the 
Commission by that Government. 

6. Contributions shall be payable in the currency of the country 
in which the seat of the Commission is located, except that the 



332 

Commission may accept payment in the currencies in which it may 
be anticipated that expenditures of the Commission will be made 
from time to time, up to an amount established each year by the 
Commission in connection with the preparation of the annual 
budgets. 

7. At its first meeting the Commission shall approve an ad- 
ministrative budget for the balance of the first financial year in 
which the Commission functions and shall transmit to the Con- 
tracting Governments copies of that budget together with notices 
of their respective allocations. 

8. In subsequent financial years, the Commission shall submit 
to each Contracting Government drafts of the annual budgets 
together with a schedule of allocations, not less than six weeks 
before the annual meeting of the Commission at which the budgets 
are to be considered. 

Article XII 

The Contracting Governments agree to take such action as may 
be necessary to make effective the provisions of this Convention 
and to implement any proposals which become effective under 
paragraph 8 of Article VIII. Each Contracting Government shall 
transmit to the Commission a statement of the action taken by it 
for these purposes. 

Article XIII 

The Contracting Governments agree to invite the attention of 
any Government not a party to this Convention to any matter 
relating to the fishing activities in the Convention area of the 
nationals or vessels of that Government which appear to affect 
adversely the operations of the Commission or the carrying out of 
the objectives of this Convention. 

Article XIV 

The Annex, as attached to this Convention and as modified from 
time to time, forms an integral part of this Convention. 

Article XV 

1. This Convention shall be ratified by the signatory Govern- 
ments and the instruments of ratification shall be deposited with 
the Government of the United States of America, referred to in 
this Convention as the 'Depositary Government/ 

2. This Convention shall enter into force upon the deposit of 
instruments of ratification by four signatory Governments, and 
shall enter into force with respect to each Government which 



333 

subsequently ratifies on the date of the deposit of its instrument 
of ratification. 

3. Any Government which has not signed this Convention may 
adhere thereto by a notification in writing to the Depositary 
Government. Adherences received by the Depositary Government 
prior to the date of entry into force of this Convention shall 
become effective on the date this Convention enters into force. 
Adherences received by the Depositary Government after the date 
of entry into force of this Convention shall become effective on the 
date of receipt by the Depositary Government. 

4. The Depositary Government shall inform all signatory Gov- 
ernments and all adhering Governments of all ratifications de- 
posited and adherences received. 

5. The Depositary Government shall inform all Governments 
concerned of the date this Convention enters into force. 

Article XVI 

1. At any time after the expiration of ten years from the date 
of entry into force of this Convention, any Contracting Govern- 
ment may withdraw from the Convention on December thirty first 
of any year by giving notice on or before the preceding June 
thirtieth to the Depositary Government which shall communicate 
copies of such notice to the other Contracting Governments. 

2. Any other Contracting Government may thereupon withdraw 
from this Convention on the same December thirty-first by giving 
notice to the Depositary Government within one month of the 
receipt of a copy of a notice of withdrawal given pursuant to 
paragraph 1 of this Article. 

Article XVII 

1. The original of this Convention shall be deposited with the 
Government of the United States of America, which Government 
shall communicate certified copies thereof to all the signatory 
Governments and all the adhering Governments. 

2. The Depositary Government shall register this Convention 
with the Secretariat of the United Nations. 

3. This Convention shall bear the date on which it is opened for 
signature and shall remain open for signature for a period of 
fourteen days thereafter. 

In witness whereof the undersigned, having deposited their 
respective full powers, have signed this Convention. 

Done in Washington this eighth day of February, 1949, in the 
English language. 

[Signatures omitted.] 



334 

ANNEX 

1. The sub-areas provided for by Article 1 of this Convention 
shall be as follows : — 

Sub-area 1. — That portion of the Convention area which lies 
to the north and east of a rhumb line from a point in 75° 00' 
north latitude and 73°30' west longitude to a point in 69°00' 
north latitude and 59° 00' west longitude; east of 59° 00' west 
longitude ; and to the north and east of a rhumb line from a point 
in 61° 00' north latitude and 59° 00' west longitude to a point in 
52° 15' north latitude and 42° 00' west longitude. 

Sub-area 2. — That portion of the Convention area lying to 
the south and west of sub-area 1 defined above and to the north 
of the parallel of 52° 15' north latitude. 

Sub-area 3. — That portion of the Convention area lying south 
of the parallel of 52° 15' north latitude; and to the east of a line 
extending due north from Cape Bauld on the north coast of 
Newfoundland to 52° 15' north latitude; to the north of the 
parallel of 39° 00' north latitude; and to the east and north of 
a rhumb line extending in a northwesterly direction which passes 
through a point in 43°30' north latitude, 55°00' west longitude, 
in the direction of a point in 47°50' north latitude, 60°00' west 
longitude, until it intersects a straight line connecting Cape Ray, 
on the coast of Newfoundland, with Cape North on Cape Breton 
Island; thence in a northeasterly direction along said line to 
Cape Ray. 

Sub-area 4. — That portion of the Convention area lying to 
the west of sub-area 3 defined above, and to the east of a line 
described as follows: beginning at the terminus of the inter- 
national boundary between the United States of America and 
Canada in Grand Manan Channel, at a point in 44° 46' 35.34" 
north latitude, 66° 54' 11.23" west longitude; thence due south 
to the parallel of 43° 50' north latitude; thence due west to the 
meridian of 67° 40' west longitude; thence due south to the 
parallel of 42° 20' north latitude; thence due east to a point in 
66° 00' west longitude; thence along a rhumb line in a south- 
easterly direction to a point in 42° 00' north latitude, 65° 40' 
west longitude ; thence due south to the parallel of 39° 00' north 
latitude. 

Sub-area 5. — That portion of the Convention area lying west 
of the western boundary of sub-area 4 defined above. 

2. For a period of two years from the date of entry into force 
of this Convention, Panel representation for each sub-area shall 
be as follows : — 



335 

(a) Sub-area 1 — Denmark, France, Italy, Norway, Portugal, 
Spain, United Kingdom ; 

(b) Sub-area 2 — Denmark, France, Italy, Newfoundland; 

(c) Sub-area 3 — Canada, Denmark, France, Italy, Newfound- 
land, Portugal, Spain, United Kingdom ; 

(d) Sub-area 4 — Canada, France, Italy, Newfoundland, 
Portugal, Spain, United States ; 

(e) Sub-area 5 — Canada, United States ; 

it being understood that during the period between the signing 
of this Convention and the date of its entry into force, any 
signatory or adhering Government may, by notification to the 
Depositary Government, withdraw from the list of members of 
a Panel for any sub-area or be added to the list of members of 
the Panel for any sub-area on which it is not named. The De- 
positary Government shall inform all the other Governments 
concerned of all such notifications received and the memberships 
of the Panels shall be altered accordingly. 

C. Mediterranean 

1. Agreement for the Establishment of a General Fisheries Council 
for the Mediterranean (1949) 

a. Note. There is an earlier conservation organization for this area, the 
International Commission for the Scientific Exploration of the Mediterranean, 
which was organized in 1919, and is still in existence. The 1949 Convention, 
sponsored by the Food and Agriculture Organization of the United Nations, 
entered into force on 20 February, 1952, after acceptance by Italy, the United 
Kingdom, Egypt, Yugoslavia, and Israel. Subsequently, Greece, France, Spain, 
Morroco, Tunisia, and Turkey have deposited acceptances. United Kingdom 
Supplementary Lists, supra, 1947-1955, and Status Table of 28 August 1956, 
which was furnished to the Editor by The Food and Agriculture Organization, 
the depositary. The text below is taken from the translation appearing in 
British Command Paper No. 8508. The text may also be found in 126 UNTS 
237. 

******* 

[Translation] 

b. GENERAL FISHERIES COUNCIL FOR THE MEDITERRANEAN 

AGREEMENT 

Rome, 2Jfth September, 1949 

PREAMBLE 

The Governments of France, Greece, Italy, the Lebanon, Turkey, 
the United Kingdom and Yugoslavia, Members of the Food and 
Agriculture Organization of the United Nations, having a mutual 



336 

interest in the development and proper utilization of the resources 
of the Mediterranean and contiguous waters, and desiring to 
further the attainment of their objectives through international 
co-operation which would be furthered by the establishment of 
a General Fisheries Council for the Mediterranean, agree as 
follows : — 

Article I 
The Council 

1. The contracting Governments agree to establish a Council 
to be known as the General Fisheries Council for the Mediter- 
ranean, hereinafter referred to as the Council, for the purpose 
of exercising the functions and discharging the responsibilities 
set forth in Article III below. 

2. The Members of the Council shall be the Governments which 
accept this Agreement in accordance with the provisions of Article 
VIII below. 

Article II 
Organization 

1. Each Member Government shall be represented at sessions 
of the Council by one delegate, who may be accompanied by an 
alternate and by experts and advisers. Participation in meetings 
of the Council by alternates, experts and advisers shall not entail 
the right to vote, except in the case of an alternate who is acting 
in the place of a delegate during his absence. 

2. Each Member Government shall have one vote. Decisions of 
the Council shall be taken by a simple majority of the votes cast, 
except as otherwise provided by this Agreement. A majority of 
the total membership of the Council shall constitute a quorum. 

3. The Council shall elect a Chairman and two Vice-Chairmen. 

4. The Council shall determine the frequency, dates and place 
of its sessions, form such committees as it deems desirable, and 
establish rules governing its procedure. 

5. The Chairman shall call a session of the Council at least once 
a year, unless directed otherwise by a majority of the Member 
Governments. The initial session shall be called by the Food and 
Agriculture Organizations of the United Nations within six months 
after the entry into force of this Agreement and at such place 
as it may designate. 

6. The seat of the Council shall be at the seat of the European 
Regional Office of the Food and Agriculture Organization of the 
United Nations, now at Rome, Italy. 



337 

7. The Food and Agriculture Organization of the United Nations 
shall provide the Secretariat for the Council. 

Article III 
Functions 

The Council shall have the following functions and responsi- 
bilities : — 

(a) To formulate all oceanographical and technical aspects 
of the problems of development and proper utilization of aquatic 
resources ; 

(b) To encourage and co-ordinate research and the applica- 
tion of improved methods employed in fishery and allied industries 
with a view to the utilisation of aquatic resources ; 

(c) To assemble, publish or otherwise disseminate all oceano- 
graphical and technical information relating to aquatic resources ; 

(d) To recommend to Member Governments such national 
and international research and development projects as may 
appear necessary or desirable to fill gaps in such knowledge ; 

(e) To undertake, where appropriate, co-operative research 
and development projects directed to this end ; 

(f ) To propose, and where necessary to adopt, measures to 
bring about the standardisation of scientific equipment, techniques 
and nomenclature; 

(g) To make comparative studies of the fishery legislation of 
different countries with a view to making recommendations to its 
Member Governments respecting the greatest possible coordina- 
tion; 

(h) To encourage research into the hygiene and prevention 
of the diseases peculiar to the calling of fishermen ; 

(i) To extend its good offices in assisting Member Govern- 
ments to secure essential materials and equipments ; 

(j) To report upon such questions relating to all oceano- 
graphical and technical problems as may be recommended to it by 
Member Governments or by the Food and Agriculture Organiza- 
tion of the United Nations and, if it thinks proper to do so, by 
other international, national or private organizations, with related 
interests ; 

(k) To report annually upon its activities to Member Govern- 
ments and to the Conference of the Food and Agriculture 
Organization of the United Nations; and to make such other 
reports to the Food and Agriculture Organization of the United 
Nations on matters falling within the competence of the Council 
as may seem to it necessary and desirable. 



338 

Article IV 

Area 

The Council shall carry out the functions and responsibilities 
set forth in Article III in the Mediterranean waters as they are 
geographically described. If, however, the Council contemplates 
studies outside this area, it shall make the necessary arrangements 
with the Governments and Organizations concerned, in conformity 
with paragraph (j) of Article III. 

Article V 
Co-operation with International Organizations 

1. The Council shall co-operate closely with other international 
organizations in matters of mutual interest. 

2. The Council shall, if it so deems opportune and useful, entrust 
to the international bodies referred to above those responsibilities 
set forth in Article III which are of a scientific nature. 

Article VI 
Expenses 

1. The expenses of delegates and their alternates, experts and 
advisers occasioned by attendance at meetings of the Council shall 
be determined and paid by their respective Governments. 

2. The expenses of the Secretariat, including publications and 
communications, and the expenses incurred by the Chairman and 
Vice-Chairman of the Council, when performing duties on behalf 
of the Council between Council sessions, shall be determined and 
paid by the Food and Agriculture Organization of the United 
Nations within the limits of an annual budget prepared and 
approved in accordance with the current regulations of that 
Organization. 

3. The expenses of research and development projects under- 
taken by individual members of the Council, whether independently 
or upon recommendation of the Council, shall be determined and 
paid by the Governments concerned. 

4. The expenses incurred in connexion with co-operative re- 
search or development projects undertaken in accordance with the 
provisions of Article III, paragraphs (d) and (e), unless other- 
wise available, shall be determined and paid by the Member 
Governments in the form and proportion to which they shall 
mutually agree. 

Article VII 

Amendments 
Any amendment of this Agreement shall require the approval 



339 

of a two-thirds majority of all the Members of the Council. An 
exception to this rule is made in the following cases : — 

(1) Amendments to the Agreement enlarging the functions 
of the Council require the approval of the Conference of the Food 
and Agriculture Organization of the United Nations in addition 
to approval by a two-thirds majority of all the Members of the 
Council ; 

(2) Amendments to the Agreement enlarging the powers of 
the Council to incur expenses to be borne by the Food and Agri- 
culture Organization of the United Nations, shall require the 
approval of a two-thirds majority of all the Members of the 
Council and of the Director-General of the Food and Agriculture 
Organization of the United Nations. 

Article VIII 
Acceptance 

1. This Agreement shall be open to acceptance by Governments 
which are members of the Food and Agriculture Organization of 
the United Nations. 

2. This Agreement shall also be open to acceptance by Govern- 
ments which are not members of the Food and Agriculture 
Organization of the United Nations with the approval of its 
Conference and of two-thirds of the Members of the Council. 
Participation by such Governments in the activities of the Council 
shall be contingent upon the assumption of a proportionate share 
in the expenses of the Secretariat, as determined by the Council 
and approved by the Food and Agriculture Organization Con- 
ference. 

3. The notifications of acceptance of this Agreement shall be 
deposited with the Director-General of the Food and Agriculture 
Organization of the United Nations, who shall immediately inform 
all the Governments concerned of their receipt. 

Article IX 
Entry into Force 

1. This Agreement shall enter into force as from the date of 
receipt of the fifth notification of acceptance. 

2. Notifications of acceptance received after the entry into force 
of this Agreement shall take effect on the date of their receipt by 
the Director-General of the Food and Agriculture Organization 
of the United Nations, who shall immediately inform all the 
Governments concerned and the Council of their receipt. 



340 

Article X 
Withdrawal 

Any Member Government may denounce this Agreement after 
the expiration of two years from the date upon which the Agree- 
ment entered into force with respect to that Government by giving 
written notice of its withdrawal to the Director-General of the 
Food and Agriculture Organization of the United Nations, who 
shall immediately inform all the Governments concerned and the 
Council of such withdrawal. Notice of withdrawal shall become 
effective three months from the date of its receipt by the Director- 
General. 

Drafted at Rome this twenty-fourth day of September one 
thousand nine hundred and forty-nine, in the French language, 
in a single copy which shall be deposited in the archives of the 
Food and Agriculture Organization of the United Nations, which 
shall furnish certified copies thereof to the Member Governments 
of the Food and Agriculture Organization of the United Nations. 

D. Indo-Pacific 

1. Agreement for the Establishment of an Indo-Pacific Fisheries 

Council (1948) 

a. Note. The Agreement for this Council, also sponsored by the Food and 
Agriculture Organization of the United Nations, entered into force on 
9 November 1948, after acceptances by France, the Philippines, the United 
States, Thailand, and India. Subsequently, the Netherlands, Burma, China, 
Ceylon, the United Kingdom, Australia, Pakistan, Korea, Indonesia, Cam- 
bodia, Viet-Nam, and Japan have become parties as of October 31, 1955. 
China withdrew from the Food and Agriculture Organization on 20 July 
1951, and does not participate in the Council. Treaties in Force, page 160. 
A Status Table as of 28 August 1956, furnished to the Editor by the F.A.O., 
does not list China as a member of the Council. The text may be found in 
62 Stat. (3) 3711; TIAS 1895; 120 UNTS 59; and British Command Paper 
No. 7845. The text below is taken from the Revised Edition, January 1954, 
published by the Food and Agriculture Organization. A Revision of the 
Agreement, prepared at the Sixth Session of the Council, entered into force 
31 October 1955 (TIAS 3674). 



b. AGREEMENT FOR THE ESTABLISHMENT OF THE INDO- 
PACIFIC FISHERIES COUNCIL (1948) 

PREAMBLE 

The Governments of Burma, China, India, the Netherlands, the 
Republic of the Philippines, the United Kingdom and the United 






341 

States of America, members of the Food and Agriculture Or- 
ganization of the United Nations, having a mutual interest in the 
development and proper utilization of the living aquatic resources 
of the Indo-Pacific Areas, and desiring to further the attainment 
of these ends through international cooperation by the establish- 
ment of an Indo-Pacific Fisheries Council agree as follows : 

Article I 
The Council 

1. The contracting Governments agree to establish a Council, 
to be known as the Indo-Pacific Fisheries Council, for the purpose 
of carrying out the functions and duties hereinafter set forth in 
Article III. 

2. The members of the Council shall be the Governments which 
accept this Agreement in accordance with the provisions of Article 
IX thereof. 

Article II 
Organization 

1. Each Member Government shall be represented at meetings 
of the Council by a single delegate, who may be accompanied by 
an alternate and by experts and advisers. Participation in meetings 
of the Council by alternates, experts and advisers shall not entail 
the right to vote, except in the case of an alternate who is acting 
in the place of a delegate during his absence. 

2. Each Member Government shall have one vote. Decisions of 
the Council shall be taken by a single majority of the votes cast, 
except as otherwise provided by this Agreement. A majority of the 
total membership of the Council shall constitute a quorum. 

3. The Council shall elect a Chairman and a Vice-Chairman who 
with the immediately retiring Chairman shall constitute the 
Executive Committee. 

4. The Council shall determine the frequency, dates and places 
of its meetings, and establish rules governing its procedure. 

5. The Chairman shall call a meeting of the Council at least once 
in every year, unless directed otherwise by a majority of the 
member Governments. The initial meeting shall be called by the 
Food and Agriculture Organization of the United Nations within 
six months after the entry into force of this Agreement and at 
such place as it may designate. 

6. The seat of the Council shall be at the seat of the Regional 
Office of the Food and Agriculture Organization of the United 
Nations most conveniently situated within the area defined in 



342 

Article IV. Pending the establishment of such a Regional Office, 
the Council shall select a temporary seat within that area. 

7. The Food and Agriculture Organization of the United Nations 
shall provide the Secretariat for the Council and shall appoint its 
Secretary. 

Article III 
Functions 

The Council shall have the following functions and duties : — 

(a) To formulate the oceanographical, biological and other 
technical aspects of the problems of development and proper 
utilization of living aquatic resources ; 

(b) To encourage and coordinate research and the applica- 
tion of improved methods in every day practice ; 

(c) To assemble, publish or otherwise disseminate oceano- 
graphical, biological and other technical information relating to 
living aquatic resources ; 

(d) To recommend to member Governments such national or 
co-operative research and development projects as may appear 
necessary or desirable to fill gaps in such knowledge ; 

(e) To undertake, where appropriate, co-operative research 
and development projects directed to this end ; 

(f) To propose, and where necessary to adopt, measures to 
bring about the standardization of scientific equipment, techniques 
and nomenclature ; 

(g) To extend its good offices in assisting Member Govern- 
ments to secure essential material and equipment ; 

(h) To report upon such questions relating to oceano- 
graphical, biological and other technical problems as may be 
recommended to it by Member Governments or by the Food and 
Agriculture Organization of the United Nations and other inter- 
national, national or private organizations with related interests ; 

(i) To report annually to the Conference of the Food and 
Agriculture Organization of the United Nations upon its activities 
for the information of the Conference; and to make such other 
reports to the Food and Agriculture Organization of the United 
Nations on matters falling within the competence of the Council 
as may seem to it necessary and desirable. 

Article IV 
Area 

The Council shall carry out the functions and duties set forth 
in Article III in the Indo-Pacific area. 



343 

Article V. 
Co-operation with International Bodies 

The Council shall co-operate closely with other international 
bodies in matters of mutual interest. 

Article VI 
Expenses 

1. The expenses of delegates and their alternates, experts and 
advisers occasioned by attendance at meetings of the Council shall 
be determined and paid by their respective Governments. 

2. The expenses of the Secretariat, including publications and 
communications, and of the Chairman, Vice-Chairman and the 
immediately retired Chairman of the Council, when performing 
duties connected with its work during intervals between its 
meetings, shall be determined and paid by the Food and Agri- 
culture Organization of the United Nations within the limits of 
an annual budget prepared and approved in accordance with the 
current regulations of that Organization. 

3. The expenses of research or development projects under- 
taken by individual members of the Council, whether independently 
or upon the recommendation of the Council, shall be determined 
and paid by their respective Governments. 

4. The expenses incurred in connection with co-operative re- 
search or development projects undertaken in accordance with 
the provisions of Article III, paragraphs (d) and (e) unless other- 
wise available shall be determined and paid by the Member Govern- 
ments in the form and proportion to which they shall mutually 
agree. 

Article VII 
Amendments 

Any proposal for amending this Agreement shall require the 
approval of a two-thirds majority of all the Members of the 
Council. An exception to this rule is made in the following cases : 

(1) Amendments to the Agreement extending the functions 
of the Council require the approval of the Conference of the Food 
and Agriculture Organization of the United Nations in addition 
to approval of a two-thirds majority of all the Members of the 
Council ; 

(2) Amendments of the Agreement extending the powers of 
the Council to incur expenses to be borne by the Food and Agri- 
culture Organization of the United Nations, shall require the 
approval by a two-thirds majority of all the Members of the 



344 

Council and of the Director-General of the Food and Agriculture 
Organization of the United Nations. 

Article VIII 
Acceptance 

1. This Agreement shall be open to acceptance by Governments 
which are members of the Food and Agriculture Organization 
of the United Nations. 

2. This Agreement shall also be open to acceptance by Govern- 
ments which are not members of the Food and Agriculture Or- 
ganization of the United Nations, with the approval of the 
Conference of the Food and Agriculture Organization of the 
United Nations and of two-thirds of the members of the Council. 
Participation by such Governments in the activities of the Council 
shall be contingent upon the assumption of a proportionate share 
in the expenses of the Secretariat, as determined by the Council 
and approved by the Food and Agriculture Organization Confer- 
ence. 

3. The notifications of acceptance of this Agreement shall be 
deposited with the Director-General of the Food and Agriculture 
Organization of the United Nations, who shall immediately inform 
all the Governments concerned of their receipt. 

Article IX 
Entry into Force 

1. This Agreement shall enter into force upon the date of 
receipt of the fifth notification of acceptance. 

2. Notifications of acceptance received after the entry into force 
of this Agreement shall take effect on the date of their receipt by 
the Director-General of the Food and Agriculture Organization 
of the United Nations who shall immediately inform all the 
Governments concerned and the Council of their receipt. 

Article X 
Withdrawal 

Any Member Government may withdraw from this Agreement, 
at any time after the expiration of two years from the date upon 
which the Agreement entered into force with respect to that 
Government by giving written notice of such withdrawal to the 
Director-General of the Food and Agriculture Organization of the 
United Nations who shall immediately inform all the Governments 
concerned and the Council of such withdrawal. Notice of with- 
drawal shall become effective three months from the date of their 
receipt by the Director-General. 



345 

Formulated at Baguio this 26th day of February, one thousand 
nine hundred and forty-eight, in the English language, in a single 
copy which shall be deposited in the archives of the Food and 
Agriculture Organization of the United Nations which shall fur- 
nish certified copies thereof to the Governments members of the 
Food and Agriculture Organization of the United Nations. 

E. North Pacific 
1. Fur Seals. Note on Agreements 

A Convention for the protection of fur seals between Canada, Japan, 
Russia, and the United States became effective on 15 December 1911. Ill 
Redmond 2966; 37 Stat. 1542. On October 23, 1940, Japan denounced the 
Convention which denunciation, under Article XVI thereof, became effective 
twelve months later. 3 Department of State Bulletin 412 (July-December 
1940). In 1942, the United States and Canada entered into a similar agree- 
ment between themselves, effective 30 May 1944 but operative from 1 June 
1942. Treaties in Force, Page 25. The text of this Provisional Fur Seal 
Agreement is printed in U. N. Leg. Series I (1951) at page 222. The national 
legislation of Canada and the United States giving effect to this Agreement 
is printed, Ibid., at pages 224 and 227, respectively. The Agreement may be 
found also in 58 Stat. 1379, and 26 UNTS 363. This Agreement was extended 
by an Exchange of Notes on 26 December 1947. 62 Stat. (2) 1821, and 27 
UNTS 29. 

An Agreement relating to programs of research concerning fur seals of 
the North Pacific Ocean, to which the U.S.S.R. was invited to become a party, 
entered into force for Japan and the United States on 8 February 1952, and 
for Canada on 1 March 1952. The texts of the Exchanges of Notes consum- 
mating the Agreement may be found in 3 U.S.T. (3) 3896; and TIAS 2521. 
An Interim Convention on conservation of North Pacific fur seals was signed 
at Washington 9 February 1957 by Canada, Japan, the U.S.S.R., and the 
United States. As of August 1957, it had not entered into force. The text of 
the Interim Convention appears in the Bulletin of the Department of State, 
4 March 1957, page 377 et seq. As of October 1957, the United States and 
Canada have deposited their ratifications. 

2. Sockeye Salmon. Note on Agreements 

The United States and Canada signed at Washington 26 May 1930 the 
Convention for the Protection, Preservation, and Extension of the Sockeye 
Salmon Fishery of the Frazer River System. The Convention entered into 
force on 28 July 1937. 50 Stat. 1355; IV Trenwith 4002. The text of the 
Convention has also been reprinted in U. N. Leg. Series I, (1951), page 195. 
The ratification of the United States was subject to ' 'understandings". IV 
Trenwith 4007; U. N. Leg. Series I, (1951), page 199. The national legisla- 
tion of Canada and the United States giving effect to the Convention is 
printed, Ibid., at pages 200 and 201, respectively. A supplementary Agree- 
ment relating to the ascent of salmon in the Frazer River System entered 
into force on 5 August 1944 through an Exchange of Notes. 59 Stat. 1614; 
121 UNTS 299. Negotiations are scheduled in the fall of 1956 for a similar 
convention with respect to pink salmon, not now covered by any fishery 
agreement. The New York Times, 5 August 1956, page 22, column 1. It has 
been reported that fishing by mile-long nets outside territorial waters of both 



346 

countries and outside the jurisdiction of the Commission is threatening the 
supply and the usefulness of the Convention. The New York Times, 7 October 

1956, Section 1, page 6, cols. 1-4. A Protocol, placing pink salmon of the 
Frazer River System under the Sockeye Salmon Convention of 1930, was 
signed at Ottawa 28 December 1956. The Protocol entered into force 3 July 

1957. The text of the Protocol appears in the Bulletin of the Department of 
State, 14 January 1957, page 76 et seq, and in T.l.A.S. 3867. 

3. International Convention for the High Seas Fisheries of the 
North Pacific Ocean (1952) with Annex and Protocol 

a. Note. This Convention, between the United States, Canada and Japan, 
entered into force 12 June 1953. It was signed at Tokyo 9 May 1952 ; ratifica- 
tion advised by the Senate 4 July 1952; ratified by the President 30 July 
1952; ratified by Canada and Japan 15 May and 9 June 1953, respectively; 
ratifications exchanged at Tokyo 12 June 1953; and proclaimed by the 
President 30 July 1953. See Allen, A New Concept for Fishery Treaties, 
46 A.J.I.L. 319 (1952) ; Selak, The Proposed International Convention for 
the High Seas Fisheries of the North Pacific Ocean, 46 Ibid. 323 (1952) ; 
and Bishop, The Need for a Japanese Fisheries Agreement, 45 Ibid. 712 
(1951). The text may be found in 4 U.S.T. 380 and TIAS 2786, the latter 
being used for the reprinting herein. The text may also be found in 48 
A.J.I.L., Supp., 1954, pages 71-81. 

b. INTERNATIONAL CONVENTION FOR THE HIGH SEAS FISHERIES 
OF THE NORTH PACIFIC OCEAN (1952) 

The Governments of the United States of America, Canada and 
Japan, whose respective duly accredited representatives have 
subscribed hereto, 

Acting as sovereign nations in the light of their rights under 
the principles of international law and custom to exploit the 
fishery resources of the high seas, and 

Believing that it will best serve the common interest of man- 
kind, as well as the interests of the Contracting Parties, to ensure 
the maximum sustained productivity of the fishery resources of 
the North Pacific Ocean, and that each of the Parties should 
assume an obligation, on a free and equal footing, to encourage 
the conservation of such resources, and 

Recognizing that in view of these considerations it is highly 
desirable (1) to establish an International Commission, represent- 
ing the three Parties hereto, to promote and coordinate the 
scientific studies necessary to ascertain the conservation measures 
required to secure the maximum sustained productivity of fisheries 
of joint interest to the Contracting Parties and to recommend such 
measures to such Parties and (2) that each Party carry out such 
conservation recommendations, and provide for necessary re- 
straints on its own nationals and fishing vessels, 

Therefore agree as follows: 



347 

Article I 

1. The area to which this Convention applies, hereinafter 
referred to as "the Convention area", shall be all waters, other 
than territorial waters, of the North Pacific Ocean which for the 
purposes hereof shall include the adjacent seas. 

2. Nothing in this Convention shall be deemed to affect adversely 
(prejudice) the claims of any Contracting Party in regard to the 
limits of territorial waters or to the jurisdiction of a coastal state 
over fisheries. 

3. For the purposes of this Convention the term "fishing 
vessel" shall mean any vessel engaged in catching fish or processing 
or transporting fish loaded on the high seas, or any vessel outfitted 
for such activities. 

Article II 

1. In order to realize the objectives of this Convention, the 
Contracting Parties shall establish and maintain the International 
North Pacific Fisheries Commission, hereinafter referred to as 
"the Commission." 

2. The Commission shall be composed of three national sections, 
each consisting of not more than four members appointed by the 
governments of the respective Contracting Parties. 

3. Each national section shall have one vote. All resolutions, 
recommendations and other decisions of the Commission shall 
be made only by a unanimous vote of the three national sections 
except when under the provisions of Article III, Section 1 (c) (ii) 
only two participate. 

4. The Commission may decide upon and amend, as occasion 
may require, by-laws or rules for the conduct of its meetings. 

5. The Commission shall meet at least once each year and at 
such other times as may be requested by a majority of the national 
sections. The date and place of the first meeting shall be deter- 
mined by agreement between the Contracting Parties. 

6. At its first meeting the Commission shall select a Chairman, 
Vice-Chairman and Secretary from different national sections. 
The Chairman, Vice-Chairman and Secretary shall hold office for 
a period of one year. During succeeding years selection of a 
Chairman, Vice-Chairman and Secretary from the national sec- 
tions shall be made in such a manner as will provide each 
Contracting Party in turn with representation in those offices. 

7. The Commission shall decide on a convenient place for the 
establishment of the Commission's headquarters. 

8. Each Contracting Party may establish an Advisory Com- 
mittee for its national section, to be composed of persons who 



348 

shall be well informed concerning North Pacific fishery problems 
of common concern. Each such Advisory Committee shall be 
invited to attend all sessions of the Commission except those which 
the Commission decided to be in camera. 

9. The Commission may hold public hearings. Each national 
section may also hold public hearings within its own country. 

10. The official languages of the Commission shall be Japanese 
and English. Proposals and data may be submitted to the Com- 
mission in either language. 

11. Each Contracting Party shall determine and pay the ex- 
penses incurred by its national section. Joint expenses incurred 
by the Commission shall be paid by the Commission through 
contributions made by the Contracting Parties in the form and 
proportion recommended by the Commission and approved by the 
Contracting Parties. 

12. An annual budget of joint expenses shall be recommended 
by the Commission and submitted to the Contracting Parties for 
approval. 

13. The Commission shall authorize the disbursement of funds 
for the joint expenses of the Commission and may employ per- 
sonnel and acquire facilities necessary for the performance of its 
functions. 

Article III 

1. The Commission shall perform the following functions : 

(a) In regard to any stock of fish specified in the Annex, 
study for the purpose of determining annually whether such stock 
continues to qualify for abstention under the provisions of Article 
IV. If the Commission determines that such stock no longer meets 
the conditions of Article IV, the Commission shall recommend 
that it be removed from the Annex. Provided, however, that with 
respect to the stocks of fish originally specified in the Annex, no 
determination or recommendation as to whether such stock con- 
tinues to qualify for abstention shall be made for five years after 
the entry into force of this Convention. 

(b) To permit later additions to the Annex, study, on request 
of a Contracting Party, any stock of fish of the Convention area, 
the greater part of which is harvested by one or more of the 
Contracting Parties, for the purpose of determining whether such 
stock qualifies for abstention under the provisions of Article IV. 
If the Commission decides that the particular stock fulfills the 
conditions of Article IV it shall recommend (1) that such stock 
be added to the Annex, (2) that the appropriate Party or Parties 
abstain from fishing such stock and (3) that the Party or Parties 



349 

participating in the fishing of such stock continue to carry out 
necessary conservation measures. 

(c) In regard to any stock of fish in the Convention area; 
(i) Study, on request of any Contracting Party concerned, 

any stock of fish which is under substantial exploitation by two or 
more of the Contracting Parties, and which is not covered by a 
conservation agreement between such Parties existing at the time 
of the conclusion of this Convention, for the purpose of deter- 
mining need for joint conservation measures; 

(ii) Decide and recommend necessary joint conservation 
measures including any relaxation thereof to be taken as a result 
of such study. Provided, however, that only the national sections 
of the Contracting Parties engaged in substantial exploitation of 
such stock of fish may participate in such decision and recom- 
mendation. The decisions and recommendations shall be reported 
regularly to all the Contracting Parties, but shall apply only to the 
Contracting Parties the national sections of which participated in 
the decisions and recommendations. 

(iii) Request the Contracting Party or Parties concerned 
to report regularly the conservation measures adopted from time 
to time with regard to the stocks of fish specified in the Annex, 
whether or not covered by conservation agreements between the 
Contracting Parties, and transmit such information to the other 
Contracting Party or Parties. 

(d) Consider and make recommendations to the Contracting 
Parties concerning the enactment of schedules of equivalent 
penalties for violations of this Convention. 

(e) Compile and study the records provided by the Contract- 
ing Parties pursuant to Article VIII. 

(f ) Submit annually to each Contracting Party a report on 
the Commission's operations, investigations and findings, with 
appropriate recommendations, and inform each Contracting Party, 
whenever it is deemed advisable, on any matter relating to the 
objectives of this Convention. 

2. The Commission may take such steps, in agreement with 
the Parties concerned, as will enable it to determine the extent 
to which the undertakings agreed to by the Parties under the 
provisions of Article V, Section 2, and the measures recommended 
by the Commission under the provisions of this Article and 
accepted by the Parties concerned have been effective. 

3. In the performance of its functions, the Commission shall, 
insofar as feasible, utilize the technical and scientific services of, 
and information from, official agencies of the Contracting Parties 
and their political sub-divisions and may, when desirable and if 



350 

available, utilize the services of, and information from, any public 
or private institution or organization or any private individual. 

Article IV 

1. In making its recommendations the Commission shall be 
guided by the spirit and intent of this Convention and by the 
considerations below mentioned. 

(a) Any conservation measures for any stock of fish decided 
upon under the provisions of this Convention shall be recom- 
mended for equal application to all Parties engaged in substantial 
exploitation of such stock. 

(b) With regard to any stock of fish which the Commission 
determines reasonably satisfies all the following conditions, a 
recommendation shall be made as provided for in Article III, 
Section 1, (b). 

(i) Evidence based upon scientific research indicates that 
more intensive exploitation of the stock will not provide a sub- 
stantial increase in yield which can be sustained year after year, 

(ii) The exploitation of the stock is limited or otherwise 
regulated through legal measures by each Party which is sub- 
stantially engaged in its exploitation, for the purpose of main- 
taining or increasing its maximum sustained productivity; such 
limitations and regulations being in accordance with conservation 
programs based upon scientific research, and 

(iii) The stock is the subject of extensive scientific study 
designed to discover whether the stock is being fully utilized and 
the conditions necessary for maintaining its maximum sustained 
productivity. 

Provided, however, that no recommendation shall be made for 
abstention by a Contracting Party concerned with regard to: (1) 
any stock of fish which at any time during the twenty-five years 
next preceding the entry into force of this Convention has been 
under substantial exploitation by that Party having regard to the 
conditions referred to in Section 2 of this Article; (2) any stock 
of fish which is harvested in greater part by a country or coun- 
tries not party to this Convention; (3) waters in which there is 
historic intermingling of fishing operations of the Parties con- 
cerned, intermingling of the stocks of fish exploited by these 
operations, and a long-established history of joint conservation 
and regulation among the Parties concerned so that there is 
consequent impracticability of segregating the operations and 
administering control. It is recognized that the conditions specified 
in subdivision (3) of this proviso apply to Canada and the United 



S51 

States of America in the waters off the Pacific Coasts of the 
United States of America and Canada from and including the 
waters of the Gulf of Alaska southward and, therefore, no recom- 
mendation shall be made for abstention by either the United States 
of America or Canada in such waters. 

2. In any decision or recommendation allowances shall be made 
for the effect of strikes, wars, or exceptional economic or biological 
conditions which may have introduced temporary declines in or 
suspension of productivity, exploitation, or management of the 
stock of fish concerned. 

Article V 

1. The Annex attached hereto forms an integral part of this 
Convention. All references to "Convention" shall be understood 
as including the said Annex either in its present terms or as 
amended in accordance with the provisions of Article VII. 

2. The Contracting Parties recognize that any stock of fish 
originally specified in the Annex to this Convention fulfills the 
conditions prescribed in Article IV and accordingly agree that the 
appropriate Party or Parties shall abstain from fishing such stock 
and the Party or Parties participating in the fishing of such stock 
shall continue to carry out necessary conservation measures. 

Article VI 

In the event that it shall come to the attention of any of the 
Contracting Parties that the nationals or fishing vessels of any 
country which is not a Party to this Convention appear to affect 
adversely the operations of the Commission or the carrying out of 
the objectives of this Convention, such Party shall call the matter 
to the attention of other Contracting Parties. All the Contracting 
Parties agree upon the request of such Party to confer upon the 
steps to be taken towards obviating such adverse effects or 
relieving any Contracting Party from such adverse effects. 

Article VII 

1. The Annex to this Convention shall be considered amended 
from the date upon which the Commission receives notification 
from all the Contracting Parties of acceptance of a recommenda- 
tion to amend the Annex made by the Commission in accordance 
with the provisions of Article III, Section I, or of the Protocol to 
this Convention. 

2. The Commission shall notify all the Contracting Parties of 
the date of receipt of each notification of acceptance of an amend- 
ment to the Annex. 



852 

Article VIII 

The Contracting* Parties agree to keep as far as practicable all 
records requested by the Commission and to furnish compilations 
of such records and other information upon request of the Com- 
mission. No Contracting Party shall be required hereunder to 
provide the records of individual operations. 

Article IX 

1. The Contracting Parties agree as follows : 

(a) With regard to a stock of fish from the exploitation of I 
which any Contracting Party has agreed to abstain, the nationals 
and fishing vessels of such Contracting Party are prohibited from 
engaging in the exploitation of such stock of fish in waters specified 
in the Annex, and from loading, processing, possessing, or trans- 
porting such fish in such waters. 

(b) With regard to a stock of fish for which a Contracting 
Party has agreed to continue to carry out conservation measures, 
the nationals and fishing vessels of such Party are prohibited from 
engaging in fishing activities in waters specified in the Annex 
in violation of regulations established under such conservation 
measures. 

2. Each Contracting Party agrees, for the purpose of rendering 
effective the provisions of this Convention, to enact and enforce 
necessary laws and regulations, with regard to its nationals and 
fishing vessels, with appropriate penalties against violations 
thereof and to transmit to the Commission a report on any action 
taken by it with regard thereto. 

Article X 

1. The Contracting Parties agree, in order to carry out faith- 
fully the provisions of this Convention, to cooperate with each 
other in taking appropriate and effective measures and accordingly 
agree as follows : 

(a) When a fishing vessel of a Contracting Party has been 
found in waters in which that Party had agreed to abstain from 
exploitation in accordance with the provisions of this Convention, 
the duly authorized officials of any Contracting Party may board 
such vessel to inspect its equipment, books, documents, and other 
articles, and question the persons on board. 

Such officials shall present credentials issued by their respective 
Governments if requested by the master of the vessel. 

(b) When any such person or fishing vessel is actually 
engaged in operations in violation of the provisions of this Con- 
vention, or there is reasonable ground to believe was obviously so 



353 

engaged immediately prior to boarding of such vessel by any such 
official, the latter may arrest or seize such person or vessel. In 
that case, the Contracting Party to which the official belongs shall 
notify the Contracting Party to which such person or vessel 
belongs of such arrest or seizure, and shall deliver such vessel or 
persons as promptly as practicable to the authorized officials of 
the Contracting Party to which such vessel or person belongs at 
a place to be agreed upon by both Parties. Provided, however, that 
when the Contracting Party which receives such notification 
cannot immediately accept delivery and makes request, the Con- 
tracting Party which gives such notification may keep such person 
or vessel under surveillance within its own territory, under the 
conditions agreed upon by both of the Contracting Parties. 

(c) Only the authorities of the Party to which the above- 
mentioned person or fishing vessel belongs may try the offense and 
impose penalties therefor. The witnesses and evidence necessary 
for establishing the offense, so far as they are under the control 
of any of the Parties to this Convention, shall be furnished as 
promptly as possible to the Contracting Party having jurisdiction 
to try the offense. 

2. With regard to the nationals or fishing vessels of one or more 
Contracting Parties in waters with respect to which they have 
agreed to continue to carry out conservation measures for certain 
stocks of fish in accordance with the provisions of this Convention, 
the Contracting Parties concerned shall carry out enforcement 
severally or jointly. In that case, the Contracting Parties con- 
cerned agree to report periodically through the Commission to the 
Contracting Party which has agreed to abstain from the exploita- 
tion of such stocks of fish on the enforcement conditions, and also, 
if requested, to provide opportunity for observation of the conduct 
of enforcement. 

3. The Contracting Parties agree to meet, during the sixth 
year of the operation of this Convention, to review the effective- 
ness of the enforcement provisions of this Article and, if 
desirable, to consider means by which they may more effectively 
be carried out. 

Article XI 

1. This Convention shall be ratified by the Contracting Parties 
in accordance with their respective constitutional processes and 
the instruments of ratification shall be exchanged as soon as 
possible at Tokyo. 

2. This Convention shall enter into force on the date of the 
exchange of ratifications. It shall continue in force for a period of 



354 

ten years and thereafter until one year from the day on which' 
a Contracting Party shall give notice to the other Contracting 
Parties of an intention of terminating the Convention, whereupon 
it shall terminate as to all Contracting Parties. 

In witness whereof, the respective Plenipotentiaries, duly 
authorized, have signed the present Convention. 

Done in triplicate, in the English and Japanese languages, both 
equally authentic, at Tokyo this ninth day of May, one thousand : 
nine hundred fifty-two. 

[Signatures omitted.] 

ANNEX 

1. With regard to the stocks of fish in the respective waters 
named below, Japan agrees to abstain from fishing, and Canada 
and the United States of America agree to continue to carry out 
necessary conservation measures, in accordance with the pro- 
visions of Article V, Section 2 of this Convention : 

(a) Halibut (Hippoglossus stenolepis) 

The Convention area off the coasts of Canada and the 
United States of America in which commercial fishing 
for halibut is being or can be prosecuted. Halibut referred 
to herein shall be those originating along the coast of 
North America. 

(b) Herring (Clupea pallasii) 

The Convention area off the coasts of Canada and the 
United States of America, exclusive of the Bering Sea 
and of the waters of the North Pacific Ocean west of the 
meridian passing through the extremity of the Alaskan 
Peninsula, in which commercial fishing for herring of 
North America origin is being or can be prosecuted. 

(c) Salmon (Oncorhynchus gorbuscha, Oncorhynchus keta, 
Oncorhynchus kisutch, Oncorhynchus nerka, Oncorhyn- 
chus tschawytscha) 

The Convention area off the coasts of Canada and the 
United States of America, exclusive of the Bering Sea 
and of the waters of the North Pacific Ocean west of a 
provisional line following the meridian passing through 
the western extremity of Atka Island; in which com- 
mercial fishing for salmon originating in the rivers of 
Canada and the United States of America is being or can 
be prosecuted. 

2. With regard to the stocks of fish in the waters named below, 



355 

Canada and Japan agree to abstain from fishing, and the United 
States of America agrees to continue to carry out necessary con- 
servation measures, in accordance with the provisions of Article 
V, Section 2 of this Convention : 

Salmon (Oncorhynchus gorbuscha, Oncorhynchus keta, 
Oncorhynchus kisutch, Oncorhynchus nerka and On- 
corhynchus tschawytscha) 

The Convention area of the Bering Sea east of the line 
starting from Cape Prince of Wales on the west coast 
of Alaska, running westward to 168° 58'22.59" West 
Longitude; thence due south to a point 65° 15'00" North 
Latitude; thence along the great circle course which 
passes through 51° North Latitude and 167° East 
Longitude, to its intersection with meridian 175° West 
Longitude; thence south along a provisional line which 
follows this meridian to the territorial waters limit of 
Atka Island; in which commercial fishing for salmon 
originating in the rivers of the United States of America 
is being or can be prosecuted. 

PROTOCOL TO THE INTERNATIONAL CONVENTION FOR THE 
HIGH SEAS FISHERIES OF THE NORTH PACIFIC OCEAN 

The Governments of the United States of America, Canada and 
Japan, through their respective Plenipotentiaries, agree upon the 
following stipulation in regard to the International Convention for 
the High Seas Fisheries of the North Pacific Ocean, signed at 
Tokyo on this ninth day of May, nineteen hundred fifty-two. 

The Governments of the United States of America, Canada and 
Japan agree that the line of meridian 175° West Longitude and 
the line following the meridian passing through the western 
extremity of Atka Island, which have been adopted for deter- 
mining the areas in which the exploitation of salmon is abstained 
or the conservation measures for salmon continue to be enforced 
in accordance with the provisions of the Annex to this Convention, 
shall be considered as provisional lines which shall continue in 
effect subject to confirmation or readjustment in accordance with 
the procedure mentioned below. 

The Commission to be established under the Convention shall, 
as expeditiously as practicable, investigate the waters of the Con- 
vention area to determine if there are areas in which salmon 
originating in the rivers of Canada and of the United States of 
America intermingle with salmon originating in the rivers of Asia. 
If such areas are found the Commission shall conduct suitable 



356 

studies to determine a line or lines which best divide salmon of 
Asiatic origin and salmon of Canadian and United States of 
America origin, from which certain Contracting Parties have 
agreed to abstain in accordance with the provisions of Article V, 
Section 2, and whether it can be shown beyond a reasonable doubt 
that this line or lines more equitably divide such salmon than the 
provisional lines specified in sections 1(c) and 2 of the Annex. 
In accordance with these determinations the Commission shall 
recommend that such provisional lines be confirmed or that they 
be changed in accordance with these results, giving due considera-- 
tion to adjustments required to simplify administration. 

In the event, however, the Commission fails within a reasonable 
period of time to recommend unanimously such line or lines, it is 
agreed that the matter shall be referred to a special committee of 
scientists consisting of three competent and disinterested persons, 
no one of whom shall be a national of a Contracting Party, selected 
by mutual agreement of all Parties for the determination of this 
matter. 

It is further agreed that when a determination has been made 
by a majority of such special committee, the Commission shall 
make a recommendation in accordance therewith. 

The Governments of the United States of America, Canada and 
Japan, in signing this Protocol, desire to make it clear that the 
procedure set forth herein is designed to cover a special situation. 
It is not, therefore, to be considered a precedent for the final 
resolution of any matters which may, in the future, come before 
the Commission. 

This Protocol shall become effective from the date of entry into 
force of the said Convention. 

In witness whereof, the respective Plenipotentiaries have 
signed this Protocol. 

Done in triplicate at Tokyo this ninth day of May, one thousand 
nine hundred fifty-two. 

[Signatures omitted.] 

4. Convention for the Preservation of the Halibut Fishery of the 
Northern Pacific Ocean and Bering Sea (1953) 

a. Note. This Convention, between the United States and Canada, entered 
into force 28 October 1953. It was signed at Ottawa 2 March 1953; ratifica- 
tion advised by the Senate 27 July 1953 ; ratified by the President 18 August 
1953; ratified by Canada 14 October 1953; ratifications exchanged at Wash- 
ington 28 October 1953; and proclaimed by the President 7 January 1954. 
The text may be found in 5 UST 5, and TIAS 2900, the latter being used 
for the reprinting herein. 

This Convention replaced the Convention for the Preservation of Halibut. 






357 

Industry, 29 January 1937, 50 Stat. 1351 and IV Trenwith 4014. The 1937 
Convention was reprinted in U.N. Leg. Series I (1951), page 205. The 
national legislation of Canada and the United States giving effect to that 
Convention are printed, Ibid., at pages 207 and 210, respectively. The 1937 
Convention was a continuation of earlier Conventions concluded on 2 March 
1923 and 9 May 1930, to be found at 43 Stat. 1841 ; IV Trenwith 3982 ; and 
47 Stat. 1872; IV Trenwith 3999, respectively. The 1923 Convention is also 
printed in U.S. Naval War College, International Law Documents, 192U 
(1926), at page 84. These two Conventions constituted a pioneer effort in 
international research and regulation of a fishery. A Convention extending 
port privileges to halibut fishing vessels on the Pacific Coasts of the two 
countries entered into force on 13 July 1950. I UST. 536; TIAS 2096. 

******* 

b. CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND 
CANADA FOR THE PRESERVATION OF THE HALIBUT FISHERY OF 
THE NORTHERN PACIFIC OCEAN AND BERING SEA (1953) 

The Government of the United States of America and the 
Government of Canada, desiring to provide more effectively for 
the preservation of the halibut fishery of the Northern Pacific 
Ocean and Bering Sea, have resolved to conclude a Convention 
replacing the Convention signed at Ottawa, January 29, 1937 and 
have named as their plenipotentiaries : 

[Names omitted.] 

who, after having communicated to each other their respective full 
powers, found in good and due form, have agreed upon the 
following articles: 

Article I 

1. The nationals and inhabitants and fishing vessels and boats 
of the United States of America and Canada, respectively, are 
hereby prohibited from fishing for halibut (Hippoglossus) in Con- 
vention waters as herein defined, except as provided by the Inter- 
national Pacific Halibut Commission in regulations designed to 
develop the stocks of halibut in the Convention waters to those 
levels which will permit the maximum sustained yield and to 
maintain the stocks at those levels pursuant to Article III of this 
Convention. 

2. "Convention waters" means the territorial Waters and the 
high seas off the western coasts of the United States of America 
and of Canada, including the southern as well as the western 
coasts of Alaska. 

3. It is understood that nothing contained in this Convention 
shall prohibit the nationals or inhabitants or the fishing vessels 
or boats of the United States of America or of Canada from fishing 
in the Convention waters for other species of fish during any 



358 

season when fishing for halibut in the Convention waters is 
prohibited by this Convention or any regulations adopted pur- 
suant to this Convention. It is further understood that nothing 
contained in this Convention shall prohibit the International 
Pacific Halibut Commission from conducting or authorizing fishing 
operations for investigation purposes at any time. 

Article II 

1. Every national or inhabitant, vessel or boat of the United 
States of America or of Canada engaged in fishing on the high seas 
in violation of this Convention or of any regulation adopted pur- 
suant thereto may be seized by duly authorized officers of either 
Contracting Party and detained by the officers making such 
seizure and delivered as soon as practicable to an authorized 
official of the country to which such person, vessel or boat belongs, 
at the nearest point to the place of seizure or elsewhere as may 
be agreed upon. The authorities of the country to which such 
person, vessel or boat belongs alone shall have jurisdiction to 
conduct prosecutions for the violation of the provisions of this 
Convention or any regulations which may be adopted in pursuance 
thereof and to impose penalties for such violation, and the wit- 
nesses and proof necessary for such prosecutions, so far as any 
witnesses or proofs are under the control of the other Contracting 
Party, shall be furnished with all reasonable promptitude to the 
authorities having jurisdiction to conduct the prosecutions. 

2. Each Contracting Party shall be responsible for the proper 
observance of this Convention and of any regulations adopted 
under the provisions thereof in the portion of its waters covered 
thereby. 

Article III 

1. The Contracting Parties agree to continue under this Con- 
vention the Commission known as the International Fisheries 
Commission established by the Convention for the Preservation 
of the Halibut Fishery, signed at Washington, March 2, 1923, 
continued by the Convention signed at Ottawa, May 9, 1930, and 
further continued by the Convention, signed at Ottawa, January 
29, 1937, except that after the date of entry into force of this 
Convention it shall consist of six members, three appointed by 
each Contracting Party, and shall be known as the International 
Pacific Halibut Commission. This Commission shall make in- 
vestigations as are necessary into the life history of the halibut 
in the Convention waters and shall publish a report of its 
activities and investigations from time to time. Each Contracting 



359 

Party shall have power to fill, and shall fill from time to time, 
vacancies which may occur in its representation on the Commis- 
sion. Each Contracting Party shall pay the salaries and expenses 
of its own members. Joint expenses incurred by the Commission 
shall be paid by the two Contracting Parties in equal moieties. 
All decisions of the Commission shall be made by a concurring 
vote of at least two of the Commissioners of each Contracting 
Party. 

2. The Contracting Parties agree that for the purpose of 
developing the stocks of halibut of the Northern Pacific Ocean 
and Bering Sea to levels which will permit the maximum sustained 
yield from that fishery and for maintaining the stocks at those 
levels, the International Pacific Halibut Commission, with the 
approval of the President of the United States of America and of 
the Governor General in Council of Canada, may, after investiga- 
tion has indicated such action to be necessary, in respect of the 
nationals and inhabitants and fishing vessels and boats of the 
United States of America and of Canada, and in respect of halibut : 

(a) divide the Convention waters into areas ; 

(b) establish one or more open or closed seasons, as to each 
area; 

(c) limit the size of the fish and the quantity of the catch 
to be taken from each area within any season during which 
fishing is allowed; 

(d) during both open and closed seasons, permit, limit, 
regulate or prohibit, the incidental catch of halibut that may be 
taken, retained, possessed, or landed from each area or portion 
of an area, by vessels fishing for other species of fish ; 

(e) prohibit departure of vessels from any port or place, or 
from any receiving vessel or station, to any area for halibut 
fishing, after any date when in the judgment of the International 
Pacific Halibut Commission the vessels which have departed for 
that area prior to that date or which are known to be fishing in 
that area shall suffice to catch the limit which shall have been set 
for that area under section (c) of this paragraph ; 

(f ) fix the size and character of halibut fishing appliances 
to be used in any area ; 

(g) make such regulations for the licencing and departure 
of vessels and for the collection of statistics of the catch of halibut 
as it shall find necessary to determine the condition and trend of 
the halibut fishery and to carry out the other provisions of this 
Convention; 

(h) close to all taking of halibut such portion or portions of 
an area or areas as the International Halibut Commission finds 



360 

to be populated by small, immature halibut and designates as 
nursery grounds. 

Article IV 

The Contracting Parties agree to enact and enforce such legisla- 
tion as may be necessary to make effective the provisions of this 
Convention and any regulation adopted thereunder, with appro- 
priate penalties for violations thereof. 

Article V 

1. This Convention shall be ratified and the instruments of 
ratification exchanged at Washington as soon as possible. 

2. This Convention shall enter into force on the date of exchange 
of ratifications and shall remain in force for a period of five years 
and thereafter until two years from the date on which either 
Contracting Party shall have given notice to the other of its desire 
to terminate it. 

3. This Convention shall, from the date of the exchange of 
ratifications, replace and terminate the Convention for the 
preservation of the halibut fishery signed at Ottawa, January 29, 
1937. 

In witness whereof the respective plenipotentiaries have 
signed and sealed this Convention. 

Done at Ottawa in duplicate, in the English language, this 
second day of March 1953. 

[Signatures omitted.] 

F. Western Pacific 

1. Introductory Note. Documents with respect to developments in this 
area are difficult to acquire. Japan as a leading fishing nation is involved 
in most, if not all, the problems of the area. The Neiv York Times, 11 June 
1956, page 10, col. 1, reports release by the Japanese Foreign Ministry in its 
June 1956, Information Bulletin of a list of seizures of Japanese fishing 
vessels since 1947 in waters traditionally regarded as high seas. According to 
these statistics, the U.S.S.R. has seized 450 vessels and 3,832 persons; South 
Korea, 209 vessels and 2,700 persons; Communist China, 121 vessels and 
1,943 persons; and Nationalist China, 50 vessels and 620 persons. Some of 
these vessels and persons are still detained by each of the countries. Seizures 
by the Soviet Union in 1955 were twice the number of any previous year, 
the biggest increase occurring during the month of negotiations on a peace 
treaty. Even after the signing of a peace treaty, reported, infra, (2) below, it 
is reported that Soviet seizures have increased. The New York Times, 11 No- 
vember 1956, page 7, cols. 1-2. There have been no seizures by Nationalist 
China since a peace treaty was concluded. Seizures by Communist China 
have declined markedly since the conclusion of the non-governmental fishing 
agreement in April 1952, (3) below. On 12 June 1956, a fisheries agreement 
was signed by the Soviet Union, Communist China, North Korea, and North 



361 

Vietnam, which is reputedly open to other countries in the Western Pacific 
region. The New York Times, 13 June 1956, page 12, col. 6. 

2. Treaty between Japan and the Union of Soviet Socialist Re- 
publics concerning Fisheries on the High Seas in the North 
Pacific Ocean and Annex. (Entered into Force 12 December 
1956) 

a. Note. On 21 March 1956, the Soviet Union established unilaterally 
a restricted fishing zone in the high seas of the Sea of Okhotsk, the western 
part of the Bering Sea, and part of the North Pacific. The New York Times, 
22 March 1956, page 14, col. 3. The text of the decree is reprinted infra, 
Section VI, B, 36, b, 1. This decree sets limits on the 1956 catch. On 14 May 
1956, the Soviet Union agreed to conclude a short-term fisheries agreement 
with Japan raising the limits for the 1956 season and replacing the unilateral 
restrictions. The New York Times, 15 May 1956, page 1, col. 8. On 15 May 
1956, the two countries signed a long-term fisheries agreement which is to 
become effective when a peace treaty is signed or diplomatic relations are re- 
sumed. On 19 October 1956, the two countries reached agreement on a peace 
treaty. In a Joint Declaration issued on that date, Paragraph 8 stated that the 
long-term fisheries agreement would enter into force when both countries 
have ratified the Declaration. An account of the settlement and the text of the 
Joint Declaration may be found in The New York Times, 20 October 1956, 
page 1, col. 5, and page 2, cols. 4-6, respectively. The text of this treaty and 
annex is taken from the Fishery Information Bulletin Supplements of the 
N.C.A. for 25 May and 1 June 1956. The Treaty entered into force on 12 
December 1956 upon the exchange of ratifications in Tokyo. The New York 
Times, 13 December 1956, page 3, cols. 1 and 2. 

*{» 5j» *j» S}» *j* 5j» »j» 

b. Treaty Between Japan and the Union of Soviet Socialist Repub- 
lics Concerning Fisheries on the High Seas in the North Pacific 
Ocean 

(Entered into force 12 December 1956) 

The Government of Japan and the Government of the Union 
of Soviet Socialist Republics, having a common interest in the 
development of fisheries on a rational basis in the Northwestern 
Pacific, and taking into consideration their mutual responsibilities 
regarding conditions of the fish species and other marine animal 
resources and their effective utilization ; 

In recognition of their agreement that the maintenance of the 
maximum sustained productivity of fisheries in the Northwestern 
Pacific is of common benefit to mankind and the two Signatory 
Powers ; 

Considering that each Signatory should assume the duty on a 
free and equal basis to plan for the preservation and increase of 
the above described resources ; 

The two Signatories, recognizing that it is highly desirable to 



362 

promote and coordinate scientific research for the purpose of 
maintaining maximum sustained productivity in the fisheries with 
which the two Signatories are concerned; 

Have, therefore, decided to conclude this Treaty and have 
respectively appointed Representatives for this purpose. These 
Representatives have agreed as follows : 

Article I 

1. The area to which this Treaty applies (hereinafter called 
"Treaty Area") shall be the entire waters (excluding territorial 
waters) of the Northwestern Pacific Ocean, including the Japan 
Sea, the Sea of Okhotsk, and the Bering Sea. 

2. It shall be understood that no provisions of this Treaty shall 
affect in any way whatsoever the position of the Signatories as 
regards the extent of the territorial waters and their jurisdiction 
over fisheries [therein ?] . 

Article II 

1. Both Signatories agree, for the preservation and develop- 
ment of fish and other marine animal resources (hereinafter to 
be called "fishery resources"), to adopt for the Treaty Area the 
joint measures indicated in the Appendix to this Treaty. 

2. The Appendix to this Treaty shall be considered as con- 
stituting an inseparable part of the Treaty. The word "Treaty" 
shall be understood to include this Appendix in its present word- 
ing or as amended in accordance with Paragraph (a) of Article IV. 

Article III 

1. In order to fulfill the objectives of the Treaty, both 
Signatories shall establish a Japanese-Soviet Fisheries Commission 
(hereinafter called "Commission"). 

2. The Commission shall be comprised of two National Com- 
mittee Divisions ; each National Committee Division shall consist 
of three Commissioners appointed by the Governments of the 
respective Signatories. 

3. All resolutions, recommendations, and other decisions of the 
Commission shall be made only upon agreement between the 
National Committee Divisions. 

4. The Commission shall determine the rules for the conduct 
of meetings and may revise them whenever necessary. 

5. The Commission shall meet at least once annually and in 
addition may meet at the request of the Nationality Committee 
Division of either party. The date and place of the first meeting 
shall be determined by agreement between the two Signatories. 



363 

6. The Commission shall at its first meeting select a Chairman 
and a Vice Chairman from the two different National Committee 
Divisions. The Chairman and the Vice Chairman shall be selected 
for a term of one year. The selection of the Chairman and the Vice 
Chairman from the National Committee Divisions shall be accom- 
plished in such a way that each year Signatories shall be repre- 
sented in these positions on a rotation basis. 

7. The official languages of the Commission shall be Japanese 
and Russian. 

8. The expenses incurred by the Commissioners in attending 
Commission meetings shall be defrayed by the appointing govern- 
ment. The Commission shall pay the joint expenses of the Com- 
mission in accordance with the allotted charges to be borne by the 
two Signatories as advised by the Commission after the formality 
of approval and allocation by the two Signatories. 

Article IV 

The Commission shall carry out the following duties : 

(a) At the meeting following regular annual meetings, joint 
measures which are being enforced at the time shall be examined 
for their appropriateness and, if necessary, the Appendix to this 
Treaty may be amended. These amendments shall be determined 
on a scientific basis. 

(b) If, in accordance with the Appendix, a fish species 
requires determination of the total annual catch, the Commission 
shall determine the amount of annual catch for the said fish 
species for both Signatories and report the figure to the two 
Signatory Powers. 

(c) In implementing this Treaty, the Commission shall deter- 
mine the kind and scope of statistics and other data which each 
Signatory shall submit to the Commission. 

(d) The Commission shall draw up and coordinate joint 
scientific research programs for the purpose of studying fishery 
resources and shall recommend these to the two Signatories. 

(e) It shall submit annually to both Signatories a report of 
the activities of the Commission. 

(f ) Besides the duties indicated in the previous sections, the 
Commission may make recommendations to the two Signatories 
on problems dealing with the preservation and increase of fishery 
resources within the Treaty Area. 

Article V 

In order mutually to exchange experience concerning fishery 
regulation and the study and preservation of fishery resources, 



364 

both Signatories agree to carry out an exchange of men of science 
with experience in fisheries. These exchanges of persons shall be 
carried out upon agreement by the two parties for each such 
occasion. 

Article VI 

1. The two Signatories shall take appropriate and effective 
measures to carry out this Treaty. 

2. When a Signatory receives notification from the Commission 
relative to the amount of the total annual catch as determined for 
the Signatory in accordance with Paragraph (b) of Article IV, 
it shall issue licenses or certificates to fishing vessels on this basis, 
and the two Signatories shall notify each other concerning the 
issuance of all such licenses and certificates. 

3. The licenses and certificates to be issued by the two 
Signatories shall be written in both Japanese and Russian and 
shall always be carried aboard when the fishing vessel is in 
operation. 

4. In order to make the provisions of this Treaty effective, the 
two signatories shall enact and enforce the necessary laws and 
regulations, with appropriate punishment for violations committed 
by their citizens, organizations, and fishing vessels ; moreover, both 
agree to submit to the Commission a report on the measures taken 
by their own country concerning this matter. 

Article VII 

1. When an authorized official of either of the Signatory Parties 
has sufficient reason to believe that a fishing vessel of the other 
Signatory is actually in violation of the provisions of this Treaty, 
the said official may board and search the said fishing vessel in 
order to determine whether or not the fishing vessel is observing 
the provisions of this Treaty. If the ship's captain demands it, the 
aforesaid official must present his identification papers issued by 
the Signatory Government to which he belongs, which shall be 
written in Japanese and Russian. 

2. The said official may seize the said fishing vessel or arrest 
an individual if he discovers facts proving violations of the 
provisions of this Treaty by the fishing vessel or by an individual 
on board, as a result of his search of the said fishing vessel. 

In such case, the Signatory Power to which the said official 
belongs shall as soon as possible inform the other Signatory Power 
to which the aforesaid fishing vessel or individual belongs, of the 
seizure or arrest; if the two Signatories cannot agree upon a 
different location, the said fishing vessel or individual must be 



365 

turned over as quickly as possible at the same location to an 
authorized official of the Signatory Power to which they belong. 
If, however, the said Signatory Power which received the report 
is not able immediately to receive them, and if the other Signatory 
Power is requested, the Signatory Power which receives such 
request may place the said fishing vessel or individual under sur- 
veillance within its own territory, if this is mutually agreed to by 
the two Signatories. 

3. Only the authorities of the Signatory Power to which the said 
fishing vessel or individual belongs may try cases arising in 
connection with this Treaty; furthermore, they shall have the 
authority to mete out punishment for these [violations] . Records 
and evidence proving violation shall as soon as possible be 
presented to the Signatory Power having the jurisdictional right 
to try the case. 

Article VIII 

1. This Treaty shall come into force on the effective date of a 
Peace Treaty between Japan and the Union of Soviet Socialist 
Republics or on the date of resumption of diplomatic relations. 

2. Either of the Signatories may inform the other Signatory of 
its intention to abrogate this Treaty at any time after a period of 
ten years following the date on which this Treaty comes into force. 

If such notification is given, this Treaty shall terminate one 
year after the date on which the abrogation notification was 
received by the other Signatory Power. 

In witness whereof, the Undersigned Representatives have 
signed the present Treaty. 

Done at Moscow, in duplicate, in the Japanese and Russian 
languages, each text having equal authenticity, this [fifteenth] 
day of May, 1956. 

[Signatures omitted.] 



ANNEX TO THE TREATY 

Between Japan and the Union of Soviet Socialist Republics Con- 
cerning Fisheries on the High Seas in the North Pacific Ocean 
(1956) 

Both Signatories agree to regulate the catch of the following 
fish and other marine animals in the Treaty Area : 

1. Salmon 

Salmon (Oncorhynchus keta) 
Trout (Oncorhynchus gorbusha) 



366 

Silver salmon (Oncorhynchus kisutsch) 

Red salmon (Oncorhynchus nerka) 

King salmon (Oncorhynchus tschaivytscha) 

(a) The area in which the regulations will be enforced shall 
be the Japan Sea north of north latitude 45° and the North- 
western Pacific (including the Okhotsk and Bering Seas) divided 
into east and south by a line running southeast from Cape Navarin 
to the intersection of north latitude 55° and west longitude 175° 
south to the intersection of north latitude 45° and west longitude 
175°, thence running westerly to the intersection of north 
latitude 45° and east longitude 155°, and then southwesterly to 
the island of Aki-yuri-shima. 

(b) For the 1956 fishing season, fisheries on the sea with 
mobile fishing equipment shall be prohibited in treaty waters 40 
miles from the coastline of islands or continental coasts belonging 
to either Signatory within the area indicated in (a) . 

The aforesaid prohibited area shall be reexamined by the 
Commission as soon as possible on the basis of future research 
data. 

Within the aforesaid prohibited area, in the area adjacent to 
Hokkaido the aforesaid provision prohibiting fisheries on the sea 
with mobile fishing equipment shall not apply to small Japanese 
fishing boats. 

(c) The total catch shall be determined by the Commission. 
The total catch for the first year the Treaty is put into force shall 
be determined at the first meeting of the Commission. 

(d) Concerning mother-ship type fisheries, the annual catch 
(based on the gross weight of the fish) per ship shall not exceed 
300 metric tons and 150 metric tons for fishing vessels and 
research vessels respectively. 

The total catch of all the fishing vessels and research vessels 
belonging to one mother-ship shall not exceed the total catch 
stipulated for one mother-ship. Within the limits of the said total 
catch, the catch of individual fishing vessels and research ves- 
sels may somewhat exceed the aforesaid amounts, respectively 
stipulated for each of the fishing vessels and research vessels. 

(e) The fishery season shall close each year on August tenth. 

(f) The length of drift nets to be laid in the seas by one 
fishing vessel shall be as follows: 

In the Okhotsk Sea, less than 10 kilometers. 
In the Pacific waters divided into east and south by a line joining 
Cape Olytorski with the point of intersection of north latitude 



367 

48°, and east longitude 175° 25' with the island of Aki-yuri-shima, 
less than 12 kilometers. 

In other waters, less than 15 kilometers. 

The space between nets for the drift nets laid by one fishing 
vessel shall be confirmed immediately after the casting of nets. 
The distance between one net and the nearest net to it shall be in 
every direction as follows : 

In the waters of the Okhotsk Sea more than 12 kilometers. 

In the Pacific waters divided into east and south by a line joining 
Cape Olytorski with the point of intersection of north latitude 48°, 
and east longitude 170° 25' with the island of Aki-yuri-shima, more 
than 10 kilometers. 

In other waters, more than 8 kilometers. 

The aforesaid provisions, however, shall not apply to small 
fishing boats which operate south of north latitude 48° and which 
have their bases in Japanese ports. 

With regard to the openings of drift nets, they shall be more 
than 55 millimeters in length from knot to knot. 

2. Herring (Clupea pallasi) 

Small, immature herrings under 20 centimeters in length (from 
the tip of the mouth to the tip of the tail fin along the central bone) 
shall not be caught. 

Mixed catches of small herring shall be allowed, provided the 
amounts are not large; such limits shall be determined by the 
Commission. 

3. Crabs 

Tarabagani (Paralithodes camtschatica) 
Aburagani (Paralithodes purachibus) 

(a) The catching of female crabs and small, immature crabs 
of less than 13 centimeters in width shall be prohibited. Female 
crabs and the aforesaid small crabs, which are caught in nets and 
pulled up out of the water, must be thrown back as soon as 
possible. Mixed catches of female crabs and the aforesaid small 
crabs shall be allowed, provided the amount is not large; such 
limits shall be determined by the Commission. 

When the mixed catches of female crabs and the aforesaid small 
crabs have reached whatever the limit is for a certain area, the. 
Commission shall determine whether fishing in that area should 
cease or not. 

(b) The Commission shall establish the limits on the length 
of the crab nets, the distance between these nets in one line, and 



368 

the spacings between the lines, taking into consideration the 
protection of the resources and efficient operation. 

3. Non-governmental Agreement Concerning Fishing in the Yellow 
Sea and the East China Sea (1956) 

a. Note. This non-governmental agreement between "private" fisheries 
associations of Communist China and of Japan was signed in Peking, 15 April 
1956, after more than ninety days of negotiation. The previous seizures of 
Japanese vessels and persons by Communist China was referred to above. 
The main clauses of the text were translated and furnished by the Depart- 
ment of State. Translations of the Attached Documents were not available. 
A complete text of the Agreement and the Attached Documents in Chinese 
and Japanese is in the files of the Union Research Institute, 110 Waterloo 
Road, Kowloon, Hong Kong. 

rfi 5jC 5(» 5JC #{» 5j» 3j» 

b. AGREEMENT BETWEEN THE CHINESE FISHERIES ASSOCIATION OF 
THE PEOPLE'S REPUBLIC OF CHINA AND THE JAPAN-CHINA FISH- 
ERIES ASSOCIATION OF JAPAN CONCERNING FISHING IN THE 
YELLOW SEA AND THE EAST CHINA SEA (1956) 

The entire delegations dispatched respectively from the Chinese 
Fisheries Association of the People's Republic of China and from 
the Japan-China Fisheries Association of Japan (hereinafter 
referred to as both Fisheries Associations), in order to utilize the 
fishing grounds in the Yellow Sea and East China Sea rationally, 
to conserve fishing resources, to avoid any disputes which might 
arise in connection with fishing operations, and to promote friendly 
collaboration between Chinese and Japanese fishing operators on 
the principle of equality and mutual interests and peaceful co- 
existence, have after conferring with each other, unanimously 
reached the following agreement. 

Article 1. Coming under application of this Agreement shall 
be the high seas in the Yellow Sea and East China Sea east of a 
line connecting the following points and north of 29 degrees north 
latitude. The point 39° 46' 48" N. Lat. and 124° 10' E. Long.; 
the point 37° 20' N. Lat. and 123° 3' E. Long. ; the point 36° 48' 10" 
N. Lat., 122° 43' E. Long.; the point 35° 11' N. Lat. and 120° 38' 
E. Long.; the point 30° 44' N. Lat. and 123° 23' E. Long.; the 
point 29° N. Lat. and 122° 45' E. Long. 

Article 2. (1) The two Fisheries Associations shall set a 
maximum number of dragnet fishing motor vessels (including 
dragnet ships either in pairs or singly, regardless) of both the 
Japanese and the Chinese sides which operate in the six fishing 
areas within the waters covered by this Agreement for a certain 
fixed period of time. Details thereof shall be worked out in 
accordance with the Attached Document No. 1. 



369 

(2) No restrictions shall be placed on navigation within the 
waters covered by this Agreement. 

Article 3. Dragnet fishing motor vessels of both the Japanese 
and Chinese sides shall abide by the provisions set forth in the 
Attached Document No. 2 in order to insure safe operations of 
dragnet vessels with other dragnet vessels and different types of 
fishing vessels and to maintain normal order in these waters. 

Article 4. (1) In the event that any of dragnet fishing 
vessels of either the Japanese or the Chinese sides needs urgent 
shelter or rescue due to shipwreck or other disaster of an Act 
of God, nature, or serious injury or sudden illness, both the Fish- 
eries Associations and the fishing vessels operating in the fishing 
grounds shall extend as much cooperation and help as possible. 

(2) In the event dragnet fishing vessels of either side stop at a 
port of the other side because of accident demanding urgent atten- 
tion, they shall have to abide by the provisions set forth in the 
Attached Table No. 3. 

Article 5. Both the Fisheries Associations are desirous of ex- 
changing data and materials regarding research and study and 
improvement of techniques of fishing to conserve fishing resources 
and increase fishing production. Details thereof are prescribed in 
the Attached Document Table No. 4. 

Article 6. (1) When a dragnet fishing vessel of either side 
discovers any dragnet fishing vessel of the other side acting in 
violation of the provisions of the Article 2, it shall notify the 
Fisheries Association to which it belongs, which in turn shall bring 
the matter to the attention of the Fisheries Associations of the 
other side and have action taken thereon. Upon receipt of the 
notification, the Fisheries Association of the other side shall take 
action against the vessel which has violated the provisions of the 
Article 2 by meting out warning or punishment, and shall also 
inform the other side of the result of the action it has taken. 

(2) When a dispute arises between Japanese and Chinese drag- 
net fishing vessels or between a dragnet fishing vessel and another 
fishing vessel, every effort shall be made to talk it over and reach 
a decision right at the spot where the trouble occurs. In the event 
of difficulties of having it solved on the spot, each side shall report 
it to its own Fisheries Association and both Fisheries Associations 
shall solve it after making the investigation of the actual situation. 

(3) When a dragnet fishing vessel of either side inflicts damage 
on a dragnet vessel or other fishing vessel of the other side in 
violation of the provisions of the Article 3, both vessels involved 
shall report the matter to their respective Fisheries Associations, 



370 

and both Fisheries Associations shail take action after making due 

investigation of the actual situation. 
Article 7. The Attached Documents of the Agreement and 

the text of this Agreement shall be equally authoritative. 

Article 8. Both Fisheries Associations shall be responsible 

for putting this Agreement into effect. 

Article 9. Both Fisheries Associations shall endeavor to urge 

their respective Governments to conduct negotiations to solve 

Japan-China fishing problems and conclude a fisheries agreement 

between the two countries, China and Japan. 

Article 10. (1) This Agreement shall go into effect 60 days 

after signing. 

(2) Both sides shall complete necessary processing and prepara- 
tions within 45 days after the signing, and notify each other of it. 
Article 11. This Agreement shall remain in force for one year 

from the day it becomes effective. 

Signed on April 15, 1955 in Peking, prepared in two copies, 
each of which is written in both Japanese and Chinese lan- 
guages, and provisions in both languages have the same 
authority. 

[Signatures and Attached Documents omitted.] 

G. Eastern Pacific 

1. Convention Between the United States of America and the Re- 
public of Costa Rica for the Establishment of an Inter- American 
Tropical Tuna Commission, and Exchange of Notes (1950). 
Adherence by Panama 21 September 1953 

a. Note. This Convention, which entered into force for Costa Rica and 
the United States on 3 March 1950, was signed at Washington, 31 May 1949; 
ratification advised by the Senate 17 August 1949; ratified by the President 
1 September 1949; ratified by Costa Rica 23 December 1949; ratifications 
exchanged at Washington 3 March 1950; and proclaimed by the President 
23 March 1950. The Exchange of Notes took place 3 March 1950. Article V, 
3rd Paragraph, provides for adherence by any government whose nationals 
participate in the fisheries covered by the Convention. Adherence by Panama 
became effective 21 September 1953. As of 1 July 1956, no other countries 
had adhered. There is, however, a bilateral Convention between the United 
States and Mexico providing for the establishment of an international com- 
mission for the scientific investigation of Tuna (TIAS 2094). A letter to the 
Editor from the Deputy Legal Adviser of the Department of State, dated 
19 July 1956, states that the Convention with Costa Rica is the only active 
fisheries convention between the United States and Latin-American States. 
The text of the Convention and Exchange of Notes may be found in 1 UST 
230; 80 UNTS 3, and TIAS 2044. The latter is the source used for the texts 
below. 

•V JJJ 3j» $}» SjC 5$» »}» 



371 

b. CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND 
THE REPUBLIC OF COSTA RICA FOR THE ESTABLISHMENT OF AN 
INTER-AMERICAN TROPICAL TUNA COMMISSION (1950) 

The United States of America and the Republic of Costa Rica 
considering their mutual interest in maintaining the populations 
of yellow-fin and skipjack tuna and of other kinds of fish taken by 
tuna fishing vessels in the eastern Pacific Ocean which by reason 
of continued use have come to be of common concern, and desiring 
to cooperate in the gathering and interpretation of factual in- 
formation to facilitate maintaining the populations of these fishes 
at a level which will permit maximum sustained catches year after 
year, have agreed to conclude a Convention for these purposes 
and to that end have named as their Plenipotentiaries : 

[Names omitted.] 
who, having communicated to each other their full powers, found 
to be in good and due form, have agreed as follows : 

Article I 

1. The High Contracting Parties agree to establish and operate 
a joint Commission, to be known as the Inter-American Tropical 
Tuna Commission, hereinafter referred to as the Commission, 
which shall carry out the objectives of this Convention. The Com- 
mission shall be composed of national sections, each consisting of 
from one to four members, appointed by the Governments of the 
respective High Contracting Parties. 

2. The Commission shall submit annually to the Government of 
each High Contracting Party a report on its investigations and 
findings, with appropriate recommendations, and shall also inform 
such Governments, whenever it is deemed advisable, on any matter 
relating to the objectives of this Convention. 

3. Each High Contracting Party shall determine and pay the 
expenses incurred by its section. Joint expenses incurred by the 
Commission shall be paid by the High Contracting Parties through 
contributions in the form and proportion recommended by the 
Commission and approved by the High Contracting Parties. The 
proportion of joint expenses to be paid by each High Contracting 
Party shall be related to the proportion of the total catch from the 
fisheries covered by this Convention utilized by that High Con- 
tracting Party. 

4. Both the general annual program of activities and the budget 
of joint expenses shall be recommended by the Commission and 
submitted for approval of the High Contracting Parties. 

5. The Commission shall decide on the most convenient place or 
places for its headquarters. 



372 

6. The Commission shall meet at least once each year, and at 
such other times as may be requested by a national section. The 
date and place of the first meeting shall be determined by agree- 
ment between the High Contracting Parties. 

7. At its first meeting the Commission shall select a chairman 
and a secretary from different national sections. The chairman and 
the secretary shall hold office for a period of one year. During 
succeeding years, selection of the chairman and the secretary from 
the national sections shall be in such a manner that the chairman 
and the secretary will be of different nationalities, and as will 
provide each High Contracting Party, in turn, with an opportunity 
to be represented in those offices. 

8. Each national section shall have one vote. Decisions, resolu- 
tions, recommendations, and publications of the Commission shall 
be made only by a unanimous vote. 

9. The Commission shall be entitled to adopt and to amend 
subsequently, as occasion may require, by-laws or rules for the 
conduct of its meetings. 

10. The Commission shall be entitled to employ necessary per- 
sonnel for the performance of its functions and duties. 

11. Each High Contracting Party shall be entitled to establish 
an Advisory Committee for its section, to be composed of persons 
who shall be well informed concerning tuna fishery problems of 
common concern. Each such Advisory Committee shall be invited 
to attend the non-executive sessions of the Commission. 

12. The Commission may hold public hearings. Each national 
section also may hold public hearings within its own country. 

13. The Commission shall designate a Director of Investigations 
who shall be technically competent and who shall be responsible 
to the Commission and may be freely removed by it. Subject to the 
instruction of the Commission and with its approval, the Director 
of Investigations shall have charge of : 

(a) The drafting of programs of investigations, and the 
preparation of budget estimates for the Commission ; 

(b) authorizing the disbursement of the funds for the joint 
expenses of the Commission ; 

(c) the accounting of the funds for the joint expenses of the 
Commission ; 

(d) the appointment and immediate direction of technical 
and other personnel required for the functions of the Commission ; 

(e) arrangements for the cooperation with other organiza- 
tions or individuals in accordance with paragraph 16 of this 
Article ; 

(f) the coordination of the work of the Commission with 



373 

that of organizations and individuals whose cooperation has been 
arranged for; 

(g) the drafting of administrative, scientific and other 
reports for the Commission ; 

(h) the performance of such other duties as the Commission 
may require. 

14. The official languages of the Commission shall be English 
and Spanish, and members of the Commission may use either 
language during meetings. When requested, translation shall be 
made to the other language. The minutes, official documents, and 
publications of the Commission shall be in both languages, but 
official correspondence of the Commission may be written, at the 
discretion of the Secretary, in either language. 

15. Each national section shall be entitled to obtain certified 
copies of any documents pertaining to the Commission except that 
the Commission will adopt and may amend subsequently rules to 
ensure the confidential character of records of statistics of 
individual catches and individual company operations. 

16. In the performance of its duties and functions the Com- 
mission may request the technical and scientific services of, and 
information from, official agencies of the High Contracting 
Parties, and any international, public, or private institution or 
organization, or any private individual. 

Article II 

The Commission shall perform the following functions and 
duties : 

1. Make investigations concerning the abundance, biology, 
biometry, and ecology of yellowfin (Neothunnus) and skipjack 
(Katsuwonus) tuna in the waters of the eastern Pacific Ocean 
fished by the nationals of the High Contracting Parties, and the 
kinds of fishes commonly used as bait in the tuna fisheries, 
especially the anchovetta, and of other kinds of fish taken by tuna 
fishing vessels; and the effects of natural factors and human 
activities on the abundance of the populations of fishes supporting 
all these fisheries. 

2. Collect and analyze information relating to current and past 
conditions and trends of the populations of fishes covered by this 
Convention. 

3. Study and appraise information concerning methods and 
procedures for maintaining and increasing the populations of 
fishes covered by this Convention. 

4. Conduct such fishing and other activities, on the high seas 
and in waters which are under the jurisdiction of the High 



374 

Contracting Parties, as may be necessary to attain the ends 
referred to in subparagraphs 1, 2, and 3 of this Article. 

5. Recommend from time to time, on the basis of scientific 
investigations, proposals for joint action by the High Contracting 
Parties designed to keep the populations of fishes covered by this 
Convention at those levels of abundance which will permit the 
maximum sustained catch. 

6. Collect statistics and all kinds of reports concerning catches 
and the operations of fishing boats, and other information concern- 
ing the fishing for fishes covered by this Convention, from vessels 
or persons engaged in these fisheries. 

7. Publish or otherwise disseminate reports relative to the 
results of its findings and such other reports as fall within the 
scope of this Convention, as well as scientific, statistical, and other 
data relating to the fisheries maintained by the nationals of the 
High Contracting Parties for the fishes covered by this Con- 
vention. 

Article III 

The High Contracting Parties agree to enact such legislation 
as may be necessary to carry out the purposes of this Convention. 

Article IV 

Nothing in this Convention shall be construed to modify any 
existing treaty or convention with regard to the fisheries of the 
eastern Pacific Ocean previously concluded by a High Contracting 
Party, nor to preclude a High Contracting Party from entering 
into treaties or conventions with other States regarding these 
fisheries, the terms of which are not incompatible with the present 
Convention. 

Article V 

1. The present Convention shall be ratified and the instruments 
of ratification shall be exchanged at Washington as soon as 
possible. 

2. The present Convention shall enter into force on the date of 
exchange of ratifications. 

3. Any government, whose nationals participate in the fisheries 
covered by this Convention, desiring to adhere to the present 
Convention, shall address a communication to that effect to each 
of the High Contracting Parties. Upon receiving the unanimous 
consent of the High Contracting Parties to adherence, such gov- 
ernment shall deposit with the Government of the United States 
of America an instrument of adherence which shall stipulate the 
effective date thereof. The Government of the United States of 



375 

America shall furnish a certified copy of the Convention to each 
government desiring to adhere thereto. Each adhering govern- 
ment shall have all the rights and obligations under the Convention 
as if it had been an original signatory thereof. 

4. At any time -after the expiration of ten years from the date 
of entry into force of this Convention any High Contracting Party 
may give notice of its intention of denouncing the Convention. 
Such notification shall become effective with respect to such 
notifying government one year after its receipt by the Government 
of the United States of America. After the expiration of the said 
one year period the Convention shall be effective only with respect 
to the remaining High Contracting Parties. 

5. The Government of the United States of America shall inform 
the other High Contracting Parties of all instruments of ad- 
herence and of notifications of denunciation received. 

In witness whereof the respective Plenipotentiaries have 
signed the present Convention. 

Done at Washington, in duplicate, in the English and Spanish 
languages, both texts being equally authentic, this 31st day of 
May, 1949. 

[Spanish Text and Signatures omitted.] 
******* 

[Translation] 

c. EXCHANGE OF NOTES (1950) 

Embassy of Costa Rica 
Washington 
No. 1579 

March 3, 1950. 

Excellency : 

I have the honor to refer to the Convention between the Republic 
of Costa Rica and the United States of America for the Establish- 
ment of an Inter-American Tropical Tuna Commission, signed at 
Washington, D.C., on May 31, 1949, which entered into force this 
day, and to inform Your Excellency of the desire of my Govern- 
ment to place on record the understanding of our two Governments 
with respect to the manner in which certain provisions of that 
Convention shall be applied. Accordingly, I take pleasure in in- 
forming you that, without prejudice to the provisions and purposes 
of the Convention under reference, the understanding of my Gov- 
ernment in regard to this matter is that which I set forth to you 
as follows. 

With respect to Article I, paragraph 3, of the Convention, which 
establishes the proportion of joint expenses to be paid by each High 



376 

Contracting Party, it is understood that "the proportion of the 
total catch from the fisheries covered by this Convention utilized 
by that High Contracting Party" shall be the part of the total 
catch which is used for domestic consumption in the territory of 
that High Contracting Party or is the object of commercial 
transactions the financial benefits of which accrue entirely or in 
their major portion to individuals or firms whose proprietors or 
stockholders are domiciled in the territory of that High Contract- 
ing Party. 

With respect to Article II, paragraph 4, of the Convention, it 
is understood that the Inter-American Tropical Tuna Commission 
is authorized to engage in fishing and other activities for scientific 
research exclusively and that no commercial ventures by the Com- 
mission are contemplated. 

It is further understood, that, notwithstanding the specific 
powers conferred upon the Commission, nothing in the Convention 
shall be interpreted as a relinquishment of or a limitation upon the 
sovereignty of a High Contracting Party over waters under its 
jurisdiction. 

My Government also desires to state that it recognizes as the 
authentic Spanish text of the Convention that contained in the 
Convention as signed, but at the same time recognizes that certain 
of its provisions might have been worded more clearly in the 
following form : 

Article I, Paragraph 1. 

"The High Contracting Parties agree to establish and maintain 
a Joint Commission to be known as the Inter-American Tropical 
Tuna Commission, which will hereinafter be called the Commis- 
sion, which shall carry into effect the objectives of this Convention. 
The Commission shall be made up of national sections, each of 
which shall include from one to four members appointed by the 
Governments of the respective High Contracting Parties." 

Article I, Paragraph 3. 

"Each of the High Contracting Parties shall determine and pay 
the expenses incurred by its respective section. The joint expenses 
incurred by the Commission shall be covered by the High Con- 
tracting Parties through contributions in such form and proportion 
as the Commission may recommend and the High Contracting 
Parties may approve. The proportion of the joint expenses to be 
paid by each of the High Contracting Parties shall be in relation 
to the proportion of the total catch from the fisheries covered by 
this Convention utilized by that High Contracting Party." 



377 

Article I, Paragraph 8. 

"Each national section shall have the right to one vote. The 
decisions, resolutions, recommendations and publications of the 
Commission must be approved by a unanimous vote." 

Article IV. 

"Nothing in the Convention shall be interpreted as changing 
any existing treaty or convention relating to the fisheries of the 
Eastern Pacific previously signed by one of the High Contracting 
Parties, nor as preventing a High Contracting Party from entering 
into treaties or conventions with other States relating to such 
fisheries, provided their terms are not incompatible with this 
Convention." 

I avail myself of this opportunity to express to Your Excellency 
my highest consideration. 

Mario Echandi 
His Excellency 

DEAN ACHESON, 
Secretary of State, 
Washington, D. C. 



The Secretary of State to the Costa Rican Appointed Ambassador 

Department of State 

Washington 
March 3, 1950. 

Excellency : 

I have the honor to refer to your note No. 1579 of March 3, 1950 
regarding the Convention between the United States of America 
and the Republic of Costa Rica for the Establishment of an Inter- 
American Tropical Tuna Commission, signed at Washington May 
31, 1949, which entered into force this day, and the desire of your 
Government to place on record the understanding of our Govern- 
ments with respect to the manner in which certain provisions of 
that Convention shall be applied. Accordingly, I take pleasure in 
informing you that, without prejudice to the provisions or pur- 
poses of the Convention under reference, my Government concurs 
in the understanding set forth in your note as follows : 

With respect to Article I, paragraph 3, of the Convention, which 
establishes the proportion of joint expenses to be paid by each 
High Contracting Party, it is understood that "the proportion of 
the total catch from the fisheries covered by this Convention 



378 

utilized by that High Contracting Party" shall be the part of the 
total catch which is used for domestic consumption in the territory 
of that High Contracting Party or is the object of commercial 
transactions the financial benefits of which accrue entirely or in 
their major portion to individuals or firms whose proprietors or 
stockholders are domiciled in the territory of that High Con- 
tracting Party. 

With respect to Article II, subparagraph 4, of the Convention, it 
is understood that the Inter-American Tropical Tuna Commission 
is authorized to engage in fishing and other activities for scientific 
research exclusively and that no commercial ventures by the 
Commission are contemplated. 

It is further understood that, notwithstanding the specific 
powers conferred upon the Commission, nothing in the Convention 
shall be interpreted as a relinquishment of or a limitation upon the 
sovereignty of a High Contracting Party over waters under its 
jurisdiction. 

My Government has also taken note of your statement that 
certain provisions of the Spanish text might have been more 
clearly expressed but that your Government recognizes that the 
authentic Spanish text of the Convention is that contained in the 
Convention as signed. 

Accept, Excellency, the renewed assurances of my highest con- 
sideration. 

Dean Acheson 

His Excellency 

Senor Don Mario Echandi, 

Appointed Ambassador of Costa Rica. 

H. Great Lakes 

1. Convention on Great Lakes Fisheries Between the United States 
of America and Canada (1954) 

a. Note. This Convention entered into force 11 October 1955. It was 
signed at Washington 10 September 1954; ratification advised by the Senate 
1 June 1955 ; ratified by the President 6 June 1955 ; ratified by Canada 6 Oc- 
tober 1955; ratifications exchanged at Ottawa 11 October 1955; and pro- 
claimed by the President 20 October 1955. The text below is taken from TIAS 
3326. The Convention is discussed by Selak in 50 A.J.I.L. 122 (1956). 
******* 

b. CONVENTION ON GREAT LAKES FISHERIES BETWEEN THE UNITED 
STATES OF AMERICA AND CANADA (1954) 

The Government of the United States of America and the 
Government of Canada, 



379 

Taking note of the interrelation of fishery conservation problems 
and of the desirability of advancing fishery research in the Great 
Lakes, 

Being aware of the decline of some of the Great Lakes fisheries, 

Being concerned over the serious damage to some of these 
fisheries caused by the parasitic sea lamprey and the continuing 
threat which this lamprey constitutes for other fisheries, 

Recognizing that joint and coordinated efforts by the United 
States of America and Canada are essential in order to determine 
the need for and the type of measures which will make possible 
the maximum sustained productivity in Great Lakes fisheries of 
common concern, 

Have resolved to conclude a convention and have appointed as 
their respective Plenipotentiaries : 

The Government of the United States of America : 

Walter Bedell Smith, Acting Secretary of State of the United 

States of America, and 
William C. Herrington, Chairman of the Delegation of the 

United States of America to the Great Lakes Fisheries 

Conference; and 

The Government of Canada : 

Arnold Danford Patrick Heeney, Ambassador Extraordinary 
and Plenipotentiary of Canada to the United States of 
America, and 
Stewart Bates, Chairman of the Delegation of Canada to the 
Great Lakes Fisheries Conference, 

who, having communicated to each other their respective full 
powers, found in good and due form, have agreed as follows : 

Article I 

This Convention shall apply to Lake Ontario (including the St. 
Lawrence River from Lake Ontario to the forty-fifth parallel of 
latitude), Lake Erie, Lake Huron (including Lake St. Clair), Lake 
Michigan, Lake Superior and their connecting waters, hereinafter 
referred to as "the Convention Area". This Convention shall also 
apply to the tributaries of each of the above waters to the extent 
necessary to investigate any stock of fish of common concern, the 
taking or habitat of which is confined predominantly to the Con- 
vention Area, and to eradicate or minimize the populations of the 
sea lamprey (Petromyzon marinus) in the Convention Area. 

Article II 
1. The Contracting Parties agree to establish and maintain a 



380 

joint commission, to be known as the Great Lakes Fishery Com- 
mission, hereinafter referred to as "the Commission", and to be 
composed of two national sections, a Canadian Section and a 
United States Section. Each Section shall be composed of not more 
than three members appointed by the respective Contracting 
Parties. 

2. Each Section shall have one vote. A decision or recommenda- 
tion of the Commission shall be made only with the approval of 
both Sections. 

3. Each Contracting Party may establish for its Section an 
advisory committee for each of the Great Lakes. The members of 
each advisory committee so established shall have the right to 
attend all sessions of the Commission except those which the 
Commission decides to hold in camera. 

Article III 

1. At the first meeting of the Commission and at every second 
subsequent annual meeting thereafter the members shall select 
from among themselves a Chairman and a Vice-Chairman, each 
of whom shall hold office from the close of the annual meeting at 
which he has been selected until the close of the second annual 
meeting thereafter. The Chairman shall be selected from one 
Section and the Vice-Chairman from the other Section. The offices 
of Chairman and Vice-Chairman shall alternate biennially between 
the Sections. 

2. The seat of the Commission shall be at such place in the 
Great Lakes area as the Commission may designate. 

3. The Commission shall hold a regular annual meeting at such 
place as it may decide. It may hold such other meetings as may be 
agreed upon by the Chairman and Vice-Chairman and at such 
time and place as they may designate. 

4. The Commission shall authorize the disbursement of funds 
for the joint expenses of the Commission and may employ per- 
sonnel and acquire facilities necessary for the performance of its 
duties. 

5. The Commission shall make such rules and by-laws for the 
conduct of its meetings and for the performance of its duties and 
such financial regulations as it deems necessary. 

6. The Commission may appoint an Executive Secretary upon 
such terms as it may determine. 

7. The staff of the Commission may be appointed by the Execu- 
tive Secretary in the manner determined by the Commission or 
appointed by the Commission itself on terms to be determined 
by it. 



381 

8. The Executive Secretary shall, subject to such rules and 
procedures as may be determined by the Commission, have full 
power and authority over the staff and shall perform such func- 
tions as the Commission may prescribe. If the office of Executive 
Secretary is vacant, the Commission shall prescribe who shall 
exercise such power or authority. 

Article IV 

The Commission shall have the following duties : 

(a) to formulate a research program or programs designed 
to determine the need for measures to make possible the maximum 
sustained productivity of any stock of fish in the Convention Area 
which, in the opinion of the Commission, is of common concern to 
the fisheries of the United States of America and Canada and to 
determine what measures are best adapted for such purpose ; 

(b) to coordinate research made pursuant to such programs 
and, if necessary, to undertake such research itself ; 

(c) to recommend appropriate measures to the Contracting 
Parties on the basis of the findings of such research programs ; 

(d) to formulate and implement a comprehensive program 
for the purpose of eradicating or minimizing the sea lamprey 
populations in the Convention Area ; and 

(e) to publish or authorize the publication of scientific and 
other information obtained by the Commission in the performance 
of its duties. 

Article V 

In order to carry out the duties set forth in Article IV, the 
Commission may: 

(a) conduct investigations; 

(b) take measures and install devices in the Convention Area 
and the tributaries thereof for lamprey control ; and 

(c) hold public hearings in the United States of America and 
Canada. 

Article VI 

1. In the performance of its duties, the Commission shall, in 
so far as feasible, make use of the official agencies of the Con- 
tracting Parties and of their Provinces or States and may make 
use of private or other public organizations, including inter- 
national organizations, or of any person. 

2. The Commission may seek to establish and maintain working 
arrangements with public or private organizations for the purpose 
of furthering the objectives of this Convention. 



382 

Article VII 

Upon the request of the Commission a Contracting Party shall 
furnish such information pertinent to the Commission's duties as 
is practicable. A Contracting Party may establish conditions 
regarding the disclosure of such information by the Commission. 

Article VIII 

1. Each Contracting Party shall determine and pay the expenses 
of its Section. Joint expenses incurred by the Commission shall be 
paid by contributions made by the Contracting Parties. The form 
and proportion of the contributions shall be those approved by the 
Contracting Parties after the Commission has made a recom- 
mendation. 

2. The Commission shall submit an annual budget of anticipated 
joint expenses to the Contracting Parties for approval. 

Article IX 

The Commission shall submit annually to the Contracting 
Parties a report on the discharge of its duties. It shall make 
recommendations to or advise the Contracting Parties whenever 
it deems necessary on any matter relating to the Convention. 

Article X 

Nothing in this Convention shall be construed as preventing any 
of the States of the United States of America bordering on the 
Great Lakes or, subject to their constitutional arrangements, 
Canada or the Province of Ontario from making or enforcing laws 
or regulations within their respective jurisdictions relative to the 
fisheries of the Great Lakes so far as such laws or regulations do 
not preclude the carrying out of the Commission's duties. 

Article XI 

The Contracting Parties agree to enact such legislation as may 
be necessary to give effect to the provisions of this Convention. 

Article XII 

The Contracting Parties shall jointly review in the eighth year 
of the operation of this Convention the activities of the Com- 
mission in relation to the objectives of the Convention in order 
to determine the desirability of continuing, modifying or terminat- 
ing this Convention. 

Article XIII 

1. This Convention shall be ratified and the instruments of 
ratification shall be exchanged at Ottawa. 



:! i 



383 

2. This Convention shall enter into force on the date of the 
exchange of the instruments of ratification. It shall remain in force 
for ten years and shall continue in force thereafter until ter- 
minated as provided herein. 

3. Either Contracting Party may, by giving two years' written 
notice to the other Contracting Party, terminate this Convention 
at the end of the initial ten-year period or at any time thereafter. 

In witness whereof the respective Plenipotentiaries have 
signed the present Convention. 

Done at Washington, in duplicate, this tenth day of September, 
1954. 

[Signatures omitted.] 



SECTION IV 

FISHERY TREATIES DEFINING 
FISHERY LIMITS 



SECTION IV 
FISHERY TREATIES DEFINING FISHERY LIMITS 

Page, 

A. Exchanges of Notes (1954 and 1955) amending the Convention 

between the United Kingdom and Denmark for Regulating the 
Fisheries outside Territorial Waters in the Ocean surrounding 
the Faroe Islands of June 24, 1901 388 

1. Articles 2, 4 and Additional Article, 1901 Convention 388 

a. Note 388 

b. Text of Articles 388 

2. Exchanges of Notes (1954 and 1955) 389 

a. Note 389 

b. Texts of Notes 389 

B. Fisheries Agreement Between the United Kingdom and the Union 

of Soviet Socialist Republics Together with Minute to Article 1 

and Exchange of Notes on Territorial Waters (1956) 393 

1. Note 393 

2. Text of Agreement 393 

C. Other recent similar Treaties. Note 396 



387 



A. Exchanges of Notes (1954 and 1955) amending the 

Convention between the United Kingdom and Denmark for 

Regulating the Fisheries outside Territorial Waters in the 

Ocean surrounding the Faroe Islands of June 24, 1901 

1. Articles 2, 4, and Additional Article, 1901 Convention 

a. Note. The text of the 1901 Convention is printed in U.N. Leg. Series 7, 
(1951), at page 232 et seq., and was taken from Volume 23, Hertslet's 
Commercial Treaties, page 425. By a Note of 30 October 1949, the Foreign 
Ministry of Iceland served notice of termination, so far as Iceland is con- 
cerned, to the United Kingdom. Under Article 39, the Convention continues 
in force for two years after the notice. The note is printed in I.C.J. , Plead- 
ings, 1951, U.K. -Norway, page 699. Articles 2, 4, and Additional Article are 
reproduced here from U.N. Leg. Series I, (1951), pages 232, 233, and 238. 

&i# *J* %Sg *$* *»> J, v », 

*$• •!• ^P *J» ^^ S|» ^5 

b. ARTICLES 2, 4, AND ADDITIONAL ARTICLE, 1901 

CONVENTION 

Article 2. The subjects of His Majesty the King of Denmark 
shall enjoy the exclusive right of fishery within the distance of 
three miles from low-water mark along the whole extent of the 
coasts of the said islands, as well as the dependent islets, rocks, 
and banks. 

As regards bays, the distance of three miles shall be measured 
from a straight line drawn across the bay, in the part nearest the 
entrance, at the first point where the width does not exceed ten 
miles. 

The present article shall not prejudice the freedom of naviga- 
tion or anchorage in territorial waters accorded to fishing boats, 
provided they conform to the Danish police regulations ruling this 
matter, amongst others the one stipulating that trawling vessels, 
while sojourning in territorial waters, shall have their trawling 
gear stowed away in-board. 

$ * * * * * # 

Article 4. The geographical limits for the application of the 
present Convention shall be fixed as follows : 

On the south by a line commencing from where the meridian of 
North Unst Lighthouse (Shetland Islands) meets the parallel of 
61st degree of north latitude to a point where the 9th meridian 
of west longitude meets the parallel of 60° north latitude, and 

388 



389 

from thence westward along that parallel to the meridian of 27° 
west longitude. 

On the west by the meridian of 27° west longitude. 

On the north by the parallel of 67° 30' of north latitude. 

On the east by the meridian of the North Unst Lighthouse. 

The aforesaid limits are shown on the chart appended to the 
present Convention. 

******* 

Additional Article. Any other government, the subjects of 
which carry on fishery in the ocean surrounding the Faroe Islands 
and Iceland, may adhere to the present Convention. The adhesion 
shall be notified to one of the Governments at Copenhagen or at 
London respectively. Such notification shall be communicated to 
the other Signatory Power. 



2. Exchanges of Notes (1954 and 1955) 

a. Note. The Notes became effective 23 July 1954 and 1 July 1955, re- 
spectively. The texts reprinted below are taken from British Command Paper 
No. 9457. 



b. EXCHANGES OF NOTES BETWEEN THE GOVERNMENT OF 
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTH- 
ERN IRELAND AND THE GOVERNMENT OF DENMARK 
AMENDING THE CONVENTION BETWEEN THE UNITED 
KINGDOM AND DENMARK FOR REGULATING THE FISH- 
ERIES OUTSIDE TERRITORIAL WATERS IN THE OCEAN 
SURROUNDING THE FAROE ISLANDS OF JUNE 24, 1901 

London, July 23, 1954 and April 22, 1955 

No. 1 (a) 

The Danish Ambassador at London to Her Majesty's Principal 
Secretary of State for Foreign Affairs 

Royal Danish Embassy, 
London, July 23, 1954. 

Sir, 

I have the honour to refer to the Convention between Denmark 
and the United Kingdom of Great Britain and Northern Ireland, 
signed in London on June 24, 1901, 1 for regulating the fisheries 
of their respective subjects outside territorial waters in the Ocean 
surrounding the Faroe Islands and, in concert with the local 



Treaty Series No. 5 (1903), Cd. 1530. 



390 

administration of the Faroe Islands, to propose on behalf of the 
Danish Government that the Additional Article of the Convention 
providing for adhesion thereto shall be abrogated with effect from 
to-day. 

2. If this proposal is acceptable to Her Majesty's Government in 
the United Kingdom, I have the honour to suggest that the present 
Note and your Excellency's reply to that effect should be regarded 
as constituting an agreement between our two governments. 

I have, etc., 

Steensen-Leth 



No. 1 (b) 

Her Majesty's Principal Secretary of State for Foreign Affairs to 
the Danish Ambassador at London 

Foreign Office, S.W. 1. 

July 23, 1954. 

Your Excellency, 

I have the honour to acknowledge receipt of your Excellency's 
Note of to-day's date which reads as follows : — 

[As in No. 1 (a).] 

I have the honour to inform you that the foregoing proposal is 
acceptable to the Government of the United Kingdom and that 
they will regard your Note and this reply as constituting an 
agreement between the two governments abrogating, with effect 
from to-day, the Additional Article of the Convention signed in 
London on the 24th of June, 1901. 

I have, etc., 
(For the Secretary of State). 

H.A.F. Hohler 



No. 2 (a) 

The Danish Charge d' Affaires at London to Her Majesty's Principal 
Secretary of State for Foreign Affairs 

Royal Danish Embassy, 
London, April 22, 1955. 

Sir, 

I have the honour to refer to the discussions between representa- 
tives of our two Governments, relating to the Convention between 
Denmark and the United Kingdom for regulating the fisheries 
outside territorial waters in the ocean surrounding the Faroe 
Islands, signed in London on the 24th of June, 1901. Following 



391 

upon these discussions, the Government of Denmark, in concert 
with the local administration of the Faroe Islands, propose to the 
Government of the United Kingdom of Great Britain and Northern 
Ireland to modify the said Convention in the following respects. 

2 — A. The limits within which Faroe Islanders and other 
Danish citizens shall enjoy the exclusive right of fishery shall be 
defined as indicated below ; all the arcs mentioned are to be drawn 
at a radius of three miles from low water mark of the islands or 
off -lying rocks (drying) ; all geographical positions are taken 
from the Danish chart No. 80, edition of 1905, (corrected to 
1953). 

North Coast 

From the arc centred on the rdck close north of Myling along 
the common tangent to that arc and the arc round Rivtange. From 
the intersection of this tangent with the common tangent between 
the arcs round Rivtange and Kadlur, the limit runs along the 
tangent, thence following the arc off Kadlur, thence along the 
common tangent to the arc off Kadlur and the arc off the outermost 
drying rock off Enniberg. Along the arc round Enniberg and 
the common tangent between this arc and that round Nordberg in 
Fugl0. Thence along the arc round Nordberg and along the com- 
mon tangent between that arc and that off the north east point 
of Fugl0. 

East Coast 

Along the arc round the north east point of Fugl0, to its inter- 
section with the arc round Bispen, thence along that arc and the 
common tangent to this arc and that round the most easterly point 
of Svin0. Thence along the arc round the most easterly point of 
Svin0 and the common tangent between it and the arc round the 
south easterly point of Svin0. Along the arc round the south 
easterly point of Svin0, and the common tangent between it and 
the arc round Skoren. From the intersection of this tangent and 
the common tangent between the arcs round Skoren and round the 
eastern point of Nols0 the limit is formed by this tangent, until 
its intersection with the common tangent between the arc round 
the eastern point of Nols0 and the arc round the eastern Fleserne, 
thence along this common tangent. Thence along the arc round 
the eastern Fleserne to its intersection with the arc round the 
Munken rock. 

West Coast 

Along the arc round the Munken rock and along the common 



392 

tangent between this arc and the arc round the south western 
islet off Famarasund. Thence along the latter arc and the common 
tangent between that arc and the arc round Bergstange. Thence 
along the arc round Bergstrange and along the common tangent 
between that arc and the arc round Kobbetange to a position 61 
degrees 35.0 minutes north, 7 degrees 04.9 minutes west, which 
is 247 degrees 3.05 miles from Kobbetange. From this position the 
limit follows a straight line to a position 61 degrees 51.5 minutes 
north, 7 degrees 23.4 minutes west, which is 253^2 degrees, 13.1 
miles from the northern point of Troldhoved off Sando. Thence as 
a straight line to the position on the arc round the outermost 
rock off Myggenaes at 62 degrees 03.9 minutes north, 7 degrees 
45.95 minutes west, which is 236 degrees 3.3 miles from Myggenaes 
lighthouse. Then the limit follows the arcs round the rocks off 
Holm at the western end of Myggenaes. 

North West Coast 

From the arc round the most northerly rock off Holm along the 
tangent to this arc which passes through the rock close north of 
Myling (not the arc round this rock) to a distance of three miles 
from the west coast of Stromo. Thence as a tangent from this 
position to the arc round the rock close north of Myling and con- 
tinuing round that arc to the common tangent to that arc and the 
arc round Rivtange. 

B. The Danish Government intend that the fishery limits in- 
dicated above shall be applied to all foreign fishing vessels. British 
fishing vessels shall receive treatment no less favourable than that 
accorded to the fishing vessels of any other foreign country. 

3. If the proposals contained in this Note are acceptable to the 
Government of the United Kingdom, I suggest that this Note, and 
your reply to that effect, should be regarded as constituting an 
Agreement between our two Governments modifying the Conven- 
tion of the 24th of June, 1901, accordingly. 

4. I further suggest that the modifications to the said Con- 
vention thus agreed upon shall enter into effect on the 1st of July, 
1955. 

5. Finally, I suggest that the Convention, as modified by the 
Exchange of Notes of the 23rd of July, 1954, and by your Govern- 
ment's acceptance of the proposals in this Note, shall remain in 
force for ten years before becoming subject to the provisions for 
denunciation contained in Article XXXIX of the said Convention. 

I have, etc., 

E. Knuth 



393 

No. 2 (b) 

Her Majesty's Principal Secretary of State for Foreign Affairs to 
the Danish Charge d' Affaires at London 

Foreign Office, S.W. 1. 

April 22, 1955. 

Sir, 

I have the honour to acknowledge receipt of your Note of 
to-day's date which reads as follows : — 

[As in No. 2(a).] 
I have the honour to inform you that the foregoing proposals 
are acceptable to the Government of the United Kingdom and that 
they will regard your Note and this reply as constituting an agree- 
ment between our two Governments, modifying the Convention of 
the 24th of June, 1901, accordingly. 

I have, etc., 

Harold Macmillan 

B. Fisheries Agreement Between the United Kingdom and 
the Union of Soviet Socialist Republics Together with 
Minute to Article 1 and Exchange of Notes on Territorial 
Waters (1956) 

1. Note. The Agreement was signed at Moscow, 25 May 1956. Ratifica- 
tions were exchanged on March 12, 1957 (Cmnd. 148, Treaty Series No. 36, 
1957). The texts below are taken from British Command Paper No. 9778. 
A previous Agreement of 1930, which expired in July 1955, provided a 
larger area for British fishermen. The New York Times, 26 May 1956, page 
2, col. 4. A "temporary" Agreement of 22 May 1930, indicating the larger 
area, is printed in UN. Leg. Series I (1951), page 174. 



2. Agreement Between the Government of the United Kingdom 
of Great Britain and Northern Ireland and the Government 
of the Union of Soviet Socialist Republics on Fisheries 

Moscow, May 25, 1956 

The Government of the United Kingdom of Great Britain and 
Northern Ireland and the Government of Soviet Socialist Republics 
have decided to conclude the present agreement and have ap- 
pointed their Representatives : — 

[Names omitted.] 

Who, having exchanged full powers which have been found to 
be in good order and due form, have agreed on the following: — 



394 

Article 1 

The Government of the Union of Soviet Socialist Republics 
agree to concede the right to fishing boats registered at the ports 
of the United Kingdom to fish in the waters in the Barents Sea 
along the coast of the Kola Peninsula between the meridians thirty- 
six degrees and thirty-seven degrees fifty minutes of East longi- 
tude, along the mainland to the East of the point of Cape Kanin 
between the meridians forty-three degrees seventeen minutes and 
fifty-one degrees of East longitude and also along the coast of 
Kolguev Island, up to a distance of three sea miles from low water 
mark both on the mainland and on the islands; the right is also 
conceded to these boats to sail freely and to anchor in these waters. 

Article 2 

United Kingdom fishing boats entering Soviet ports and 
sheltered waters in extraordinary circumstances will be governed 
by the regulations laid down by the competent Soviet authorities. 

Article 3 

The present Agreement is subject to ratification. The exchange 
of the instruments of ratification shall take place as soon as 
possible in London. 

The Agreement has been concluded for a period of five years 
and shall enter into force from the date of the exchange of the 
instruments of ratification. 

If neither of the parties has given notice of denunciation not 
later than one year before the termination of the above period in 
which the Agreement is in force, the Agreement will remain in 
force for a further five years and thus each time it will be con- 
sidered to have been extended for a further five years unless one 
of the parties denounces it not later than one year before the 
termination of the current five-year period in which it is in force. 

Done at Moscow on the 25th day of May, 1956, in duplicate, both 
in the English and Russian languages, and both texts being equally 
authoritative. 

[Signatures omitted.] 

******* 

Minute to Article 1 of the Agreement between the Government 
of the United Kingdom of Great Britain and Northern Ireland 
and the Government of the Union of Soviet Socialist Republics 
on Fisheries of May 25, 1956. 

The permission given by the Government of the Union of Soviet 
Socialist Republics to fishing vessels registered at the United 



Kingdom ports to engage in fishing, to navigate freely and anchor 
in the waters indicated in Article 1 of the Agreement shall not be 
considered to concede to such fishing vessels the right to engage in 
fishing, to navigate and anchor ia such, forbidden zones as may be 
established by the competent Soviet authorities inside the limits* 
of the waters coming within the scope of the agreement, 

[Signatures omitted.] 

#j? »J» *J» 5j» *t^ »j» *j» 

EXCHANGE OF NOTES ON TERRITORIAL WATERS 

No. 1 

Her Majesty's Ambassador at Moscow to the Soviet Union Deputy 

Minister of Foreign Affairs 

British Embassy, 
Moscow, May 25, 1956. 

Mr. Deputy Minister, 

I have the honour to refer to the Agreement between the 
Government of the United Kingdom of Great Britain and Northern 
Ireland and the Government of the Union of Soviet Socialist 
Republics, signed this day at Moscow, for regulating the fishing 
activities of fishing boats registered in the ports of the United 
Kingdom in the waters contiguous to the Northern coasts of the 
Union of Soviet Socialist Republics and the Islands dependent 
thereon, and to inform your Excellency that it is the understand- 
ing of the Government of the United Kingdom that nothing in this 
Agreement shall be deemed to prejudice the claims or views of 
either Contracting Government in regard to the limits of territorial 
waters. 

I have the honour to suggest that the present Note and your 
Excellency's reply thereto shall be regarded as an official ex- 
pression of the points of view of the two Governments on this 
matter. 

W. Hayter 



No. 2 

[Translation from the Russian text] 

The Soviet Union Deputy Minister of Foreign Affairs to Her 
Majesty's Ambassador at Moscow 

Moscow, May 25, 1956. 

Mr. Ambassador, 

Taking into consideration the view of the British Government, 
expressed in your Excellency's Note of today's date, that no pro- 



396 

visions contained in the Agreement on Fisheries signed to-day in 
Moscow between the Government of the Union of Soviet Socialist 
Republics and the Government of the United Kingdom of Great 
Britain and Northern Ireland shall be deemed to prejudice the 
claims or views of the Contracting Parties concerning the limits 
of territorial waters, I have the honour to remind you that the 
width of the Soviet Union's territorial waters and the regulations 
governing them were defined in the Statute concerning the Se- 
curity of the State Frontiers of the Union of Soviet Socialist 
Republics of June 15, 1927. 

With this I have the honour to confirm that your Excellency's 
Note and the present answer shall be regarded as an official ex- 
pression of the points of view of the two Governments on this 
question. 

V. KUZNETSOV 



C. Other Recent Similar Treaties 

Note. An Agreement concerning Fisheries, 13 April 1949, between Italy 
and Yugoslavia, contains provisions denning Yugoslav fishing zones in which 
Italians may fish and also contains provisions setting quotas in the interest 
of conservation. The additional 4 mile fishing zone beyond territorial waters 
claimed by Yugoslavia (see Yugoslavia, infra) is included within the zones 
in which Yugoslavia grants permission to fish. The Agreement entered into 
force 1 May 1949, and Article 13 provides it shall remain in force for two 
years and continued by "tacit agreement in each year" unless denounced by 
either country with four months' notice. The text of the Agreement is printed 
in U. N. Leg. Series J, (1951), page 241. A letter to the Editor from the 
Acting Director, Fisheries Division, Food and Agriculture Organization of 
the United Nations, dated 28 August 1956, enclosed the original French text 
of a new fishery Treaty between Italy and Yugoslavia, concluded on 1 March 
1956. The letter states it is understood that "although this agreement has 
not yet been ratified by the Italian Parliament, it is already being applied 
informally." The new Treaty provides in annexed letter No. 1 that it shall be 
effective immediately for the fishing season already under way. The new 
Treaty adds new fishing zones with somewhat different limits. Its provisions, 
in general, are similar to the 1949 Treaty, but it makes no reference to that 
treaty. 

An Agreement regarding Eights of Fishery in the areas of the English 
Channel Islands of Ecrehos and Minquiers, signed at London 30 January 1951, 
became effective on 24 September 1951, when ratifications were exchanged at 
Paris. This Agreement, between the United Kingdom and France, defined 
fishery limits without prejudice to the forthcoming decision of the Inter- 
national Court of Justice as to sovereignty over the Ecrehos and Minquiers. 
The text of the agreement is to be found in British Command Paper No. 8444. 
The Judgment of the International Court of Justice of 17 November 1953 
in The Ecrehos and Minquiers Case awarded sovereignty of both groups 
Of islands to the United Kingdom largely on the basis of historical evidence. 
International Court of Justice Reports, 1953, page 47 et seq. 



SECTION V 

TREATY ON CONTINENTAL SHELF 
AND SUPPLEMENTARY LEGISLA- 
TION 



SECTION V 

TREATY ON CONTINENTAL SHELF AND SUPPLEMENTARY 

LEGISLATION 

A. Note on United Kingdom- Venezuela Treaty (1942) with 

Summary and Excerpts 

Note. The greatest part of the development of the doctrine of the Con- 
tinental Shelf is traceable to national legislation. Claims since 1950 are 
collected, infra, Section VI. The early national claims to the Continental Shelf 
are reprinted in U. S. Naval War College, International Law Documents, 
19^8-4.9 (1950) at pages 182-196. National claims through 1950 are also col- 
lected in U.N. Leg. Series I, (1951), pages 3-47. Included in this latter collec- 
tion is the earliest important document on this subject, the Treaty, between 
the United Kingdom and Venezuela, relating to the Submarine Areas of the 
Gulf of Paria, 26 February 1942, Ibid., page 44, taken from British Com- 
mand Paper No. 6400. The United Kingdom national legislation carrying out 
this Treaty is printed in the same collection at page 46. 

The 1942 Treaty, supra, contains a preamble and nine articles. Article 1 
defines "submarine areas of the Gulf of Paria" as "the sea-bed and sub-soil 
outside of the territorial waters of the High Contracting Parties to one or 
the other side of the lines A-B, B-Y and Y-X". Article 3 defines the area 
within the lines mentioned. Article 2 divides the claims of the two govern- 
ments in the defined area. Article 4 provides for a mixed Commission to mark 
the respective boundaries. Article 5 provides: "This Treaty refers solely 
to the submarine areas of the Gulf of Paria, and nothing herein shall be held 
to affect in any way the status of the islands, islets or rocks above the sur- 
face of the sea together with the territorial waters thereof". Article 6 pro- 
vides in the first sentence: "Nothing in this Treaty shall be held to affect 
in any way the status of the waters of the Gulf of Paria or any rights of 
passage or navigation on the surface of the seas outside the territorial waters 
of the contracting parties". The second sentence of Article 6 provides that 
any installations shall not be a danger or obstruction to shipping. Article 7 
provides for cooperation in practical measures to prevent pollution. Article 
8 requires insertion in any concession of provisions to ensure compliance 
with Articles 6 and 7, and for supervision of operations to the same purpose. 
Article 9 provides for peaceful solution of disputes. The quotations above 
are taken from the text printed in U. N. Leg. Series I, (1951), pages 44-46. 



399 



SECTION VI 

NATIONAL LEGISLATION, UNILAT- 
ERAL CLAIMS CONCERNING THE 
HIGH SEAS, THE TERRITORIAL 
SEA, THE CONTINENTAL SHELF, 
AND FISHERIES. REPRESENTATIVE 
PROTESTS BY OTHER STATES 



SECTION VI 

NATIONAL LEGISLATION, UNILATERAL CLAIMS CONCERNING 
THE HIGH SEAS, THE TERRITORIAL SEA, THE CONTI- 
NENTAL SHELF, AND FISHERIES. REPRESENTATIVE PRO- 
TESTS BY OTHER STATES 

Page 

A. The United States 407 

1. The Continental Shelf 409 

a. Introductory Note 409 

b. Presidential Proclamation, 28 September 1945 410 

c. Submerged Lands Act, 22 May 1953 412 

d. Outer Continental Shelf Lands Act, 7 August 1953 418 

2. Territorial Waters and Fisheries 431 

a. Introductory Note 431 

b. Presidential Proclamation, 28 September 1945 434 

c. Executive Order No. 9634, 28 September 1945 435 

d. Protection of Vessels on the High Seas and in Territorial 

Waters of Foreign Countries. Public Law 680, 27 Au- 
gust 1954 436 

B. Significant Developments in Other Countries 439 

1. Argentina. Note 441 

2. Australia 441 

a. Note 441 

b. Proclamation of Continental Shelf, Australia, 10 Sep- 

tember 1953 442 

c. Proclamation of Continental Shelf, Territory of New 

Guinea, 10 September 1953 443 

3. Brazil 444 

a. Note 444 

b. Presidential Decree No. 28, 840, 8 November 1950 (Ex- 

cerpts) 444 

4. Bulgaria 444 

a. Note : 444 

b. Decree of 10 October 1951 concerning the Territorial and 

Inland Waters of the People's Republic of Bulgaria . . . 445 

5. Canada. Note 447 

6. Chile 448 

a. Note on Claims and Protests 448 

b. Swedish Note of Protest to Chile, October 1954 448 

c. United States Note of Protest to Chile, 2 July 1948 450 

7. China, Republic of (Nationalist) . Note 451 

403 



404 



Page 

8. Costa Rica. Note 451 

9. Cuba 452 

a. Note 452 

b. Articles 1 and 2 of Legislative Decree No. 1948 of 27 

January 1955 452 

10. Denmark. Note 452 

11. Dominican Republic 453 

a. Note 453 

b. Article V of Constitution of 1947 (Excerpt) 453 

c. Act No. 3342 of 13 July 1952 concerning the Extent of the 

Territorial Waters of the Republic 453 

12. Ecuador 455 

a. Note 455 

b. Congressional Decree concerning the Continental Shelf, 

21 February 1951 456 

13. Egypt 457 

a. Note 457 

b. Royal Decree concerning the Territorial Waters of the 

Kingdom of Egypt, 15 January 1951 458 

14. El Salvador 460 

a. Note 460 

b. Article 7 of the Political Constitution of 7 September 

1950 460 

15. Ethiopia 460 

a. Note 460 

b. Maritime Proclamation, No. 137 of 1953 461 

c. Swedish Note of Protest to Ethiopia, 11 February 1954. . 461 

16. Guatemala 462 

a. Note 462 

b. Article 3 of the Constitution of the Republic of Guatemala 

of 1 March 1956 462 

17. Honduras 462 

a. Note 462 

b. Congressional Decree No. 102, Amending the Political 

Constitution, 7 March 1950 463 

c. Congressional Decree No. 25 (Approving Presidential De- 

cree No. 96 of 28 January 1950), 17 January 1951 464 

18. Iceland 466 

a. Note 466 

b. Law No. 44 of 5 April 1948 concerning the Scientific 

Conservation of the Continental Shelf Fisheries, as 

Amended, and Statement of Reasons (Excerpts) 468 

c. Articles 1 and 2 of the Regulations of 19 March 1952 

concerning conservation of fisheries off the Icelandic 

Coasts 471 

19. India 472 

a. Note 472 

b. Presidential Proclamation of 22 March 1956 473 

20. Iran 473 

a. Note 473 



405 

Page 

b. Act of 19 June 1955 concerning the Exploration and Ex- 
ploitation of the Continental Shelf 473 

21. Israel 474 

a. Note 475 

b. Government's Decision of 11 September 1955 475 

c. Proclamation of 3 August 1952 475 

d. Submarine Areas Law, 5713-1953 475 

22. Japan. Note 476 

23. Korea 476 

a. Note 476 

b. Presidential Proclamation of Sovereignty Over Adjacent 

Seas, 18 January 1952 476 

c. The Fishery Resources Conservation Law, No. 298, 

Promulgated 12 December 1954 478 

24. Mexico 479 

a. Note 479 

b. Presidential Decree, 25 February 1949 480 

c. United States Protest Note of 14 January 1948 481 

25. Nicaragua. Note 482 

26. Norway 483 

a. Note 483 

b. Royal Decree of 18 July 1952, as Amended 17 October 

1952 484 

27. Pakistan. Note 486 

28. Panama. Note 486 

29. Peru. Note 486 

30. Philippines 487 

a. Note 487 

b. Note from Philippine Foreign Ministry to the United 

Nations Secretariat, 12 December 1955 487 

31. Roumania. Note 488 

32. Saudi Arabia. Note 488 

33. Sweden. Note 489 

34. Turkey. Note 489 

35. United Kingdom, Arab Protectorates, and Colonies 489 

a. Continental Shelf. Note 489 

b. Territorial Waters and Fisheries. Note 490 

(1) Statement of United Kingdom Policy on Territorial 

Waters, 14 December 1953 491 

36. Union of Soviet Socialist Republics 492 

a. Continental Shelf. Note 492 

b. General Position of the Soviet Union on Territorial 

Waters and Fisheries. Note 492 

(1) Soviet Salmon Fishing Decree of 21 March 1956. . . 494 

c. Baltic Territorial Water Limits: Soviet Dispute with 

Sweden and Denmark. Note 495 

(1) Note from the Swedish Embassy in Moscow to the 

Soviet Russian Foreign Ministry, July 18, 1951 . . 496 



406 



Page 

(2) Note from the Soviet Russian Foreign Ministry to 
the Swedish Embassy in Moscow, August 21, 
1951 499 

37. Venezuela. Note 500 

38. Yugoslavia. Note 500 



A. THE UNITED STATES 



A. The United States 

1. The Continental Shelf 

a. Introductory Note. Presidential Proclamation No. 2667 of 28 Sep- 
tember 1945, concerning the Continental Shelf was the first unilateral claim 
to attract widespread attention and imitation, spurious or otherwise. Al- 
though the text is printed in N.W.C., I.L. Documents, 1948-4.9, page 183, it is 
reprinted below for convenience of reference. It has also been published in 
U.N. Leg. Series I (1951), page 38; I.C.J. , Pleadings, 1951, U.K.-Norway, 
III, page 747; and 40 A.J.I.L., Supp., 1946, page 45. Executive Order No. 
9633 of 28 September 1945, placing control of the Continental Shelf in the 
Secretary of the Interior, is printed in Ibid., page 41; Ibid., Ill, page 748; 
and Ibid., page 47, as well as in N.W.C., I.L. Documents 1948-49, page 184. 
Relevant extracts from the accompanying Press Release are printed in U.N. 
Leg. Series I (1951), page 39. For comment on the Shelf Proclamation, see 
Bibliographical Note, supra. 

The Submerged Lands Act of 1953, 67 Stat. 29, and the Outer Continental 
Shelf Lands Act of 1953, 67 Stat. 462, are reprinted in 48 A.J.I.L., Supp., 
1954, pages 104 and 110. The two Acts, as reproduced below, are taken from 
that source. 

In Alabama v. Texas, et al., and Rhode Island v. Louisiana, et al., 347 
U.S. 272 (1954), Alabama and Rhode Island moved to file a complaint against 
the States receiving off-shore resources under the Submerged Lands Act, and 
challenged the constitutionality of that Act. The motion was dismissed Per 
Curiam, the Chief Justice not participating, Justice Reed concurring, and 
Justices Black and Douglas dissenting. 

The States of California, Louisiana and Texas had made claims which were 
involved in litigation prior to the two Acts, supra. See U.S. v. Louisiana, 
339 U.S. 699 (1950) ; U.S. v. Texas, 339 U.S. 707 (1950) ; and U.S. V. Cali- 
fornia, 332 U.S. 19 (1947). 

Section 2(b) of the Submerged Lands Act provides that the seaward 
"boundaries" of a State of the United States shall not extend more than 
three miles into the Pacific or Atlantic Oceans or more than three leagues 
into the Gulf of Mexico. Litigation between the United States and Louisiana, 
concerning a dispute over conflicting claims as to the proper "boundary" is 
pending in the Supreme Court of the United States. By ah Order of 11 June 
1956, the Supreme Court enjoined any other suits by parties acting in 
Louisiana's interest, and enjoined the United States and Louisiana from mak- 
ing new leases or starting new drilling in the disputed areas, unless the parties 
reach agreement, pending the final determination of the controversy by the 
Supreme Court. Such an agreement was signed by Louisiana and the United 
States on October 12, 1956, and permits the resumption of activity, with 
impounding of the proceeds from disputed areas. The New York Times, 13 
October 1956, p. 25, col. 3. The Chief Justice did not participate in the Order. 

409 



410 

76 Supreme Court Reporter 1043 (1956), and earlier Order at page 842 
thereof. On 24 June 1957, the Supreme Court, Per Curiam, authorized inter- 
vention in the litigation by the States of Alabama, Florida, Mississippi, and 
Texas. Pending motions of the United States and Louisiana were continued. 

77 Supreme Court Reporter 1373 (1957). The Chief Justice and Mr. Justice 
Clark did not participate. 

The Texas Act of 16 May 1941, as amended 23 May 1947, appears in 
U.N. Leg. Series I (1951) page 41, with a Note giving the original text, 
and references to comments on the legislation by the Supreme Court. The 
1941 Act claimed 27 miles, and the 1947 amendment extended the claim to 
the outer limits of the Continental Shelf. Louisiana Act No. 55 of 30 June 
1938, is printed in Ibid, page 114, with a Note referring to comments on the 
legislation by the Supreme Court. The Louisiana Act claimed 27 miles. Cali- 
fornia in Article XXI of its Constitution claimed the 3 mile belt for itself. 
Constitution of California and other Documents, Mason, California State 
Printing Office, 1945, page 202. Article 12 of the 1849 California Constitu- 
tion, making a similar claim, is reprinted in I.C.J., Pleadings, 1951, U.K.- 
Norway, III, page 742. 

A Note of 29 February 1956 from the Secretary of State of the United 
States to the United Nations states, in part: "* * * So far as concerns the 
references to the laws of California, Louisiana, and Texas, these provisions 
cannot be regarded as being determinative at present of the regime of the 
territorial sea of the United States. The Submerged Lands Act of 1953 
limits to three miles the distance to which the boundaries of coastal States 
of the Union may extend into the Atlantic Ocean or the Pacific Ocean. While 
the Act does not preclude States of the Union bordering on the Gulf of 
Mexico from establishing claims to more than three miles into the Gulf of 
Mexico, there has been no adjudication to date of any such claims. * * *" 



b. PRESIDENTIAL PROCLAMATION, 28 SEPTEMBER 1945 

(Proclamation No. 2667, 10 F.R. 12303) 

Whereas the Government of the United States of America, 
aware of the long range world-wide need for new sources of 
petroleum and other minerals, holds the view that efforts to dis- 
cover and make available new supplies of these resources should 
be encouraged; and 

Whereas its competent experts are of the opinion that such re- 
sources underlie many parts of the continental shelf off the coasts 
of the United States of America, and that with modern technolog- 
ical progress their utilization is already practicable or will become 
so at an early date ; and 

Whereas recognized jurisdiction over these resources is re- 
quired in the interest of their conservation and prudent utilization 
when and as development is undertaken ; and 



411 

Whereas it is the view of the Government of the United States 
that the exercise of jurisdiction over the natural resources of the 
subsoil and sea bed of the continental shelf by the contiguous 
nation is reasonable and just, since the effectiveness of measures 
to utilize or conserve these resources would be contingent upon 
co-operation and protection from the shore, since the continental 
shelf may be regarded as an extension of the land-mass of the 
coastal nation and thus naturally appurtenant to it, since these re- 
sources frequently form a seaward extension of a pool or deposit 
lying within the territory, and since self-protection compels the 
coastal nation to keep close watch over activities off its shores 
which are of the nature necessary for utilization of these resources ; 

Now, therefore, I, Harry S. Truman, President of the United 
States of America, do hereby proclaim the following policy of the 
United States of America with respect to the natural resources of 
the subsoil and sea bed of the continental shelf. 

Having concern for the urgency of conserving and prudently 
utilizing its natural resources, the Government of the United 
States regards the natural resources of the subsoil and sea bed 
of the continental shelf beneath the high seas but contiguous to 
the coasts of the United States as appertaining to the United 
States, subject to its jurisdiction and control. In cases where the 
continental shelf extends to the shores of another State, or is 
shared with an adjacent State, the boundary shall be determined 
by the United States and the State concerned in accordance with 
equitable principles. The character as high seas of the waters above 
the continental shelf and the right to their free and unimpeded 
navigation are in no way thus affected. 

In witness whereof, I have hereunto set my hand and caused 
the seal of the United States of America to be affixed. 

Done at the City of Washington this twenty-eighth day of 
September, in the year of our Lord nineteen hundred and forty- 
five, and of the Independence of the United States of America the 
one hundred and seventieth. 

Harry S. Truman 
By the President : 

Dean Acheson 

Acting Secretary of State. 

[SEAL] 



412 

c. UNITED STATES SUBMERGED LANDS ACT (1953) * 

Approved May 22, 1953 

AN ACT 

To Confirm and Establish the Titles of the States to Lands Beneath 
Navigable Waters Within State Boundaries and to the Natural 
Resources Within Such Lands and Waters, to Provide for the 
Use and Control of Said Lands and Resources, and to Confirm 
the Jurisdiction and Control of the United States over the Natural 
Resources of the Seabed of the Continental Shelf Seaward of 
State Boundaries 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act 
may be cited as the "Submerged Lands Act." 

Title I 
Definition 
Section 2. When Used in This Act. — 

(a) The term "lands beneath navigable waters" means — 

(1) all lands within the boundaries of each of the re- 
spective States which are covered by nontidal waters that were 
navigable under the laws of the United States at the time such 
State became a member of the Union, or acquired sovereignty over 
such lands and waters thereafter, up to the ordinary high water 
mark as heretofore or hereafter modified by accretion, erosion, 
and reliction; 

(2) all lands permanently or periodically covered by tidal 
waters up to but not above the line of mean high tide and seaward 
to a line three geographical miles distant from the coast line of 
each such State and to the boundary line of each such State where 
in any case such boundary as it existed at the time such State 
became a member of the Union, or as heretofore approved by 
Congress, extends seaward (or into the Gulf of Mexico) beyond 
three geographical miles, and 

(3) all filled in, made, or reclaimed lands which formerly 
were lands beneath navigable waters, as hereinabove defined ; 

(b) The term "boundaries" includes the seaward boundaries 
of a State or its boundaries in the Gulf of Mexico or any of the 
Great Lakes as they existed at the time such State became a mem- 
ber of the Union, or as heretofore approved by the Congress, or 
as extended or confirmed pursuant to section 4 hereof but in no 



i Pub. Law 31, 83rd Cong., 1st Sess. (H.R. 4198) ; 67 Stat. 29. 



413 

event shall the term "boundaries" or the term "lands beneath 
navigable waters" be interpreted as extending from the coast 
line more than three geographical miles into the Atlantic Ocean 
or the Pacific Ocean, or more than three marine leagues into the 
Gulf of Mexico; 

(c) The term "coast line" means the line of ordinary low 
water along that portion of the coast which is in direct contact 
with the open sea and the line marking the seaward limit of inland 
waters ; 

(d) The terms "grantees" and "lessees" include (without 
limiting the generality thereof) all political subdivisions, munici- 
palities, public and private corporations, and other persons hold- 
ing grants or leases from a State, or from its predecessor sovereign 
if legally validated, to lands beneath navigable waters if such 
grants or leases were issued in accordance with the constitution, 
statutes, and decisions of the courts of the State in which such 
lands are situated, or of its predecessor sovereign : Provided, how- 
ever, That nothing herein shall be construed as conferring upon 
said grantees or lessees any greater rights or interests other than 
are described herein and in their respective grants from the State, 
or its predecessor sovereign ; 

(e) The term "natural resources" includes, without limiting 
the generality thereof, oil, gas, and all other minerals, and fish, 
shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other 
marine animal and plant life but does not include water power, 
or the use of water for the production of power ; 

(f ) The term "lands beneath navigable waters" does not in- 
clude the beds of streams in lands now or heretofore constituting 
a part of the public lands of the United States if such streams 
were not meandered in connection with the public survey of such 
lands under the laws of the United States and if the title to the 
beds of such streams was lawfully patented or conveyed by the 
United States or any State to any person ; 

(g) The term "State" means any State of the Union; 

(h) The term "person" includes, in addition to a natural 
person, an association, a State, a political subdivision of a State, 
or a private, public, or municipal corporation. 

Title II 
Lands Beneath Navigable Waters Within State Boundaries 

Section 3. Rights of the States. — 

(a) It is hereby determined and declared to be in the public 
interest that (1) title to and ownership of the lands beneath 



414 

navigable waters within the boundaries of the respective States, 
and the natural resources within such lands and waters, and (2) 
the right and power to manage, administer, lease, develop, and 
use the said lands and natural resources all in accordance with 
applicable State law be, and they are hereby, subject to the pro- 
visions hereof, recognized, confirmed, established, and vested in 
and assigned to the respective States or the persons who were on 
June 5, 1950, entitled thereto under the law of the respective 
States in which the land is located, and the respective grantees, 
lessees, or successors in interest thereof; 

(b) (1) The United States hereby releases and relinquishes 
unto said States and persons aforesaid, except as otherwise re- 
served herein, all right, title, and interest of the United States, 
if any it has, in and to all said lands, improvements, and natural 
resources; (2) the United States hereby releases and relinquishes 
all claims of the United States, if any it has, for money or dam- 
ages arising out of any operations of said States or persons pur- 
suant to State authority upon or within said lands and navigable 
waters; and (3) the Secretary of the Interior or the Secretary of 
the Navy or the Treasurer of the United States shall pay to the 
respective States or their grantees issuing leases covering such 
lands or natural resources all moneys paid thereunder to the Sec- 
retary of the Interior or to the Secretary of the Navy or to the 
Treasurer of the United States and subject to the control of any of 
them or to the control of the United States on the effective date of 
this Act, except that portion of such moneys which (1) is required 
to be returned to a lessee ; or (2) is deductible as provided by stipu- 
lation or agreement between the United States and any of said 
States ; 

(c) The rights, powers, and titles hereby recognized, con- 
firmed, established, and vested in and assigned to the respective 
States and their grantees are subject to each lease executed by 
a State, or its grantee, which was in force and effect on June 5, 
1950, in accordance with its terms and provisions and the laws 
of the State issuing, or whose grantee issued, such lease, and such 
rights, powers, and titles are further subject to the rights herein 
now granted to any person holding any such lease to continue to 
maintain the lease, and to conduct operations thereunder, in ac- 
cordance with its provisions, for the full term thereof, and any 
extensions, renewals, or replacements authorized therein, or here- 
tofore authorized by the laws of the State issuing, or whose grantee 
issued such lease: Provided, however, that, if oil or gas was not 
being produced from such lease on and before December 11, 1950, 
or if the primary term of such lease has expired since December 



415 

11, 1950, then for a term from the effective date hereof equal to 
the term remaining unexpired on December 11, 1950, under the 
provisions of such lease or any extensions, renewals, or replace- 
ments authorized therein, or heretofore authorized by the laws of 
the State issuing, or whose grantee issued, such lease: Provided, 
however, That within ninety days from the effective date hereof 
(i) the lessee shall pay to the State or its grantee issuing such 
lease all rents, royalties, and other sums payable between June 5, 
1950, and the effective date hereof, under such lease and the laws 
of the State issuing or whose grantee issued such lease, except 
such rents, royalties, and other sums as have been paid to the State, 
its grantee, the Secretary of the Interior or the Secretary of the 
Navy or the Treasurer of the United States and not refunded to 
the lessee; and (ii) the lessee shall file with the Secretary of the 
Interior or the Secretary of the Navy and with the State issuing 
or whose grantee issued such lease, instruments consenting to the 
payment by the Secretary of the Interior or the Secretary of the 
Navy or the Treasurer of the United States to the State or its 
grantee issuing the lease, of all rents, royalties, and other pay- 
ments under the control of the Secretary of the Interior or the 
Secretary of the Navy or the Treasurer of the United States or the 
United States which have been paid, under the lease, except such 
rentals, royalties, and other payments as have also been paid by 
the lessee to the State or its grantee; 

(d) Nothing in this Act shall affect the use, development, 
improvement, or control by or under the constitutional authority 
of the United States of said lands and waters for the purposes of 
navigation or flood control or the production of power, or be con- 
strued as the release or relinquishment of any rights of the United 
States arising under the constitutional authority of Congress to 
regulate or improve navigation, or to provide for flood control, or 
the production of power; 

(e) Nothing in this Act shall be construed as affecting or 
intended to affect or in any way interfere with or modify the 
laws of the States which lie wholly or in part westward of the 
ninety-eighth meridian, relating to the ownership and control of 
ground and surface waters; and the control, appropriation, use, 
and distribution of such waters shall continue to be in accordance 
with the laws of such States. 

Section 4. Seaward Boundaries. — 

The seaward boundary of each original coastal State is hereby 
approved and confirmed as a line three geographical miles distant 
from its coast line or, in the case of the Great Lakes, to the inter- 



416 

national boundary. Any State admitted subsequent to the forma- 
tion of the Union which has not already done so may extend its 
seaward boundaries to a line three geographical miles distant from 
its coast line, or to the international boundaries of the United 
States in the Great Lakes or any other body of water traversed 
by such boundaries. Any claim heretofore or hereafter asserted 
either by constitutional provision, statute, or otherwise, indicating 
the intent of a State so to extend its boundaries is hereby approved 
and confirmed, without prejudice to its claim, if any it has, that 
its boundaries extend beyond that line. Nothing in this section is 
to be construed as questioning or in any manner prejudicing the 
existence of any State's seaward boundary beyond three geograph- 
ical miles if it was so provided by its constitution or laws prior to 
or at the time such State became a member of the Union, or if it 
has been heretofore approved by Congress. 

Section 5. Exceptions From Operation of Section 3 of 
This Act. — 

There is excepted from the operation of section 3 of this Act — 

(a) all tracts or parcels of land together with all accretions 
thereto, resources therein, or improvements thereon, title to which 
has been lawfully and expressly acquired by the United States 
from any State or from any person in whom title had vested under 
the law of the State or of the United States, and all lands which 
the United States lawfully holds under the law of the State; all 
lands expressly retained by or ceded to the United States when the 
State entered the Union (otherwise than by a general retention or 
cession of lands underlying the marginal sea) ; all lands acquired 
by the United States by eminent domain proceedings, purchase, 
cession, gift, or otherwise in a proprietary capacity ; all lands filled 
in, built up, or otherwise reclaimed by the United States for its 
own use ; and any rights the United States has in lands presently 
and actually occupied by the United States under claim of right; 

(b) such lands beneath navigable waters held, or any interest 
in which is held by the United States for the benefit of any tribe, 
band, or group of Indians or for individual Indians ; and 

(c) all structures and improvements constructed by the 
United States in the exercise of its navigational servitude. 

Section 6. Powers Retained by the United States. — 

(a) The United States retains all its navigational servitude 
and rights in and powers of regulation and control of said lands 
and navigable waters for the constitutional purposes of commerce, 
navigation, national defense, and international affairs, all of which 



417 

shall be paramount to, but shall not be deemed to include, propri- 
etary rights of ownership, or the rights of management, admin- 
istration, leasing, use, and development of the lands and natural 
resources which are specifically recognized, confirmed, established, 
and vested in and assigned to the respective States and others by 
section 3 of this Act. 

(b) In time of war or when necessary for national defense, 
and the Congress or the President shall so prescribe, the United 
States shall have the right of first refusal to purchase at the pre- 
vailing market price, all or any portion of the said natural re- 
sources, or to acquire and use any portion of said lands by pro- 
ceeding in accordance with due process of law and paying just 
compensation therefor. 

Section 7. — Nothing in this Act shall be deemed to amend, 
modify, or repeal the Acts of July 26, 1866 (14 Stat. 251), July 9, 
1870 (16 Stat. 217), March 3, 1877 (19 Stat. 377), June 17, 1902 
(32 Stat. 388), and December 22, 1944 (58 Stat. 887), and Acts 
amendatory thereof or supplementary thereto. 

Section 8. — Nothing contained in this Act shall affect such 
rights, if any, as may have been acquired under any law of the 
United States by any person in lands subject to this Act and such 
rights, if any, shall be governed by the law in effect at the time 
they may have been acquired: Provided, however, That nothing 
contained in this Act is intended or shall be construed as a finding, 
interpretation, or construction by the Congress that the law under 
which such rights may be claimed in fact or in law applies to the 
lands subject to this Act, or authorizes or compels the granting 
of such rights in such lands, and that the determination of the 
applicability or effect of such law shall be unaffected by anything 
contained in this Act. 

Section 9. — Nothing in this Act shall be deemed to affect in 
any wise the rights of the United States to the natural resources 
of that portion of the subsoil and seabed of the Continental Shelf 
lying seaward and outside of the area of lands beneath navigable 
waters, as defined in section 2 hereof, all of which natural re- 
sources appertain to the United States, and the jurisdiction and 
control of which by the United States is hereby confirmed. 

Section 10. — Executive Order Numbered 10426, dated January 
16, 1953, entitled "Setting Aside Submerged Lands of the Conti- 
nental Shelf, as a Naval Petroleum Reserve," is hereby revoked 
insofar as it applies to any lands beneath navigable waters as 
defined in section 2 hereof. 

Section 11. Separability. — If any provision of this Act, or 



418 

any section, subsection, sentence, clause, phrase, or individual 
word, or the application thereof to any person or circumstance is 
held invalid, the validity of the remainder of the Act and of the 
application of any such provision, section, subsection, sentence, 
clause, or phrase or individual word to other persons and circum- 
stances shall not be affected thereby ; without limiting the general- 
ity of the foregoing, if subsection 3 (a) 1, 3 (a) 2, 3 (b) 1, 3 (b) 2, 
3 (b) 3, or 3 (c) of any provision of any of those subsections is 
held invalid, such subsection or provision shall be held separable, 
and the remaining subsections and provisions shall not be affected 
thereby. 

Approved May 22, 1953. 

d. OUTER CONTINENTAL SHELF LANDS ACT (1953) 2 

Approved August 7, 1953 

AN ACT 

To Provide for the Jurisdiction of the United States Over the 
Submerged Lands of the Outer Continental Shelf and to Au- 
thorize the Secretary of the Interior to Lease Such Lands for 
Certain Purposes 

Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the "Outer Continental Shelf Lands Act." 

Section 2. Definitions. — When Used in This Act — 

(a) The term "outer Continental Shelf" means all submerged 
lands lying seaward and outside of the area of lands beneath 
navigable waters as defined in section 2 of the Submerged Lands 
Act (Public Law 31, Eighty-third Congress, first session), and of 
which the subsoil and seabed appertain to the United States and 
are subject to its jurisdiction and control; 

(b) the term "Secretary" means the Secretary of the Interior; 

(c) The term "mineral lease" means any form of authorization 
for the exploration for, or development or removal of deposits of, 
oil, gas, or other minerals ; and 

(d) The term "person" includes, in addition to a natural person, 
an association, a State, a political subdivision of a State, or a 
private, public, or municipal corporation. 

Section 3. Jurisdiction Over Outer Continental Shelf. — 
(a) It is hereby declared to be the policy of the United States 



2 Pub. Law 212, 83d Cong., 1st Sess. (H.R. 5134) ; 67 Stat. 462. 



419 

that the subsoil and seabed of the outer Continental Shelf apper- 
tain to the United States and are subject to its jurisdiction, con- 
trol, and power of disposition as provided in this Act. 

(b) This Act shall be construed in such manner that the char- 
acter as high seas of the water above the outer Continental Shelf 
and the right to navigation and fishing therein shall not be 
affected. 

Section 4. Laws Applicable to Outer Continental 
Shelf. — 

(a) (1) The Constitution and laws and civil and political juris- 
diction of the United States are hereby extended to the subsoil and 
seabed of the outer Continental Shelf and to all artificial islands 
and fixed structures which may be erected thereon for the purpose 
of exploring for, developing, removing, and transporting resources 
therefrom, to the same extent as if the outer Continental Shelf 
were an area of exclusive Federal jurisdiction located within a 
State: Provided, however, That mineral leases on the outer Con- 
tinental Shelf shall be maintained or issued only under the pro- 
visions of this Act. 

(2) To the extent that they are applicable and not incon- 
sistent with this Act or with other Federal laws and regulations 
of the Secretary now in effect or hereafter adopted, the civil 
and criminal laws of each adjacent State as of the effective date 
of this Act are hereby declared to be the law of the United 
States for that portion of the subsoil and seabed of the outer 
Continental Shelf, and artificial islands and fixed structures erected 
thereon, which would be within the area of the State if its boun- 
daries were extended seaward to the outer margin of the outer 
Continental Shelf, and the President shall determine and pub- 
lish in the Federal Register such projected lines extending sea- 
ward and defining each such area. All of such applicable laws 
shall be administered and enforced by the appropriate officers 
and courts of the United States. State taxation laws shall not apply 
to the outer Continental Shelf. 

(3) The provisions of this section for adoption of State 
law as the law of the United States shall never be interpreted as 
a basis for claiming any interest in or jurisdiction on behalf of 
any State for any purpose over the seabed and subsoil of the outer 
Continental Shelf, or the property and natural resources thereof 
or the revenues therefrom. 

(b) The United States district courts shall have original juris- 
diction of cases and controversies arising out of or in connection 
with any operations conducted on the outer Continental Shelf for 



420 

the purpose of exploring for, developing, removing or trans- 
porting by pipeline the natural resources, or involving rights to 
the natural resources of the subsoil and seabed of the outer Con- 
tinental Shelf, and proceedings with respect to any such case or 
controversy may be instituted in the judicial district in which any 
defendant resides or may be found, or in the judicial district of 
the adjacent State nearest the place where the cause of action 
arose. 

(c) With respect to disability or death of an employee result- 
ing from any injury occurring as the result of operations described 
in subsection (c), compensation shall be payable under the pro- 
visions of the Longshoremen's and Harbor Workers' Compensation 
Act. For the purposes of the extension of the provisions of the 
Longshoremen's and Harbor Workers' Compensation Act under 
this section — 

(1) the term "employee" does not include a master or a 
member of a crew of any vessel, or an officer or employee of the 
United States or any agency thereof or of any State or foreign 
government, or of any political subdivision thereof; 

(2) the term "employer" means an employer any of whose 
employees are employed in such operations; and 

(3) the term "United States" when used in a geographical 
sense includes the outer Continental Shelf and artificial islands and 
fixed structures thereon. 

(d) For the purposes of the National Labor Relations Act, as 
amended, any unfair labor practice, as defined in such Act, oc- 
curring upon any artificial island or fixed structure referred to in 
subsection (a) shall be deemed to have occurred within the ju- 
dicial district of the adjacent State nearest the place of location of 
such island or structure. 

(e) (1) The head of the Department in which the Coast Guard 
is operating shall have authority to promulgate and enforce such 
reasonable regulations with respect to lights and other warning 
devices, safety equipment, and other matters relating to the pro- 
motion of safety of life and property on the islands and structures 
referred to in subsection (a) or on the waters adjacent thereto, 
as he may deem necessary. 

(2) The head of the Department in which the Coast Guard 
is operating may mark for the protection of navigation any such 
island or structure whenever the owner has failed suitably to mark 
the same in accordance with regulations issued hereunder, and the 
owner shall pay the cost thereof. Any person, firm, company, or 
corporation who shall fail or refuse to obey any of the lawful rules 
and regulations issued hereunder shall be guilty of a misdemeanor 



421 

and shall be fined not more than $100 for each offense. Each day 
during which such violation shall continue shall be considered a 
new offense. 

(f) The authority of the Secretary of the Army to prevent 
obstruction to navigation in the navigable waters of the United 
States is hereby extended to artificial islands and fixed structures 
located on the outer Continental Shelf. 

(g) The specific application by this section of certain provisions 
of law to the subsoil and seabed of the outer Continental Shelf 
and the artificial islands and fixed structures referred to in sub- 
section (a) or to acts or offenses occurring or committed thereon 
shall not give rise to any inference that the application to such 
islands and structures, acts, or offenses of any other provision of 
law is not intended. 

Section 5. Administration of Leasing of the Outer Con- 
tinental Shelf. — 

(a) (1) The Secretary shall administer the provisions of this 
Act relating to the leasing of the outer Continental Shelf, and 
shall prescribe such rules and regulations as may be necessary to 
carry out such provisions. The Secretary may at any time pre- 
scribe and amend such rules and regulations as he determines to 
be necessary and proper in order to provide for the prevention 
of waste and conservation of the natural resources of the outer 
Continental Shelf, and the protection of correlative rights therein, 
and, notwithstanding any other provisions herein, such rules and 
regulations shall apply to all operations conducted under a lease 
issued or maintained under the provisions of this Act. In the 
enforcement of conservation laws, rules, and regulations the Sec- 
retary is authorized to cooperate with the conservation agencies 
of the adjacent States. Without limiting the generality of the fore- 
going provisions of this section, the rules and regulations pre- 
scribed by the Secretary thereunder may provide for the assign- 
ment or relinquishment of leases, for the sale of royalty oil and 
gas accruing or reserved to the United States at not less than 
market value, and, in the interest of conservation, for unitization, 
pooling, drilling agreements, suspension of operations or produc- 
tion, reduction of rentals or royalties, compensatory royalty 
agreements, subsurface storage of oil or gas in any of said sub- 
merged lands, and drilling or other easements necessary for 
operations or production. 

(2) Any person who knowingly and willfully violates any 
rule or regulation prescribed by the Secretary for the prevention 
of waste, the conservation of the natural resources, or the pro- 



422 

tection of correlative rights shall be deemed guilty of a misde- 
meanor and punishable by a fine of not more than $2,000 or by 
imprisonment for not more than six months, or by both such fine 
and imprisonment, and each day of violation shall be deemed to be 
a separate offense. The issuance and continuance in effect of any 
lease, or of any extension, renewal, or replacement of any lease 
under the provisions of this Act shall be conditioned upon compli- 
ance with the regulations issued under this Act and in force and 
effect on the date of the issuance of the lease if the lease is issued 
under the provisions of section 8 hereof, or with the regulations 
issued under the provisions of section 6 (b), clause (2), hereof if 
the lease is maintained under the provisions of section 6 hereof. 

(b) (1) Whenever the owner of a nonproducing lease fails to 
comply with any of the provisions of this Act, or of the lease, or 
of the regulations issued under this Act and in force and effect 
on the date of the issuance of the lease if the lease is issued under 
the provisions of section 8 hereof, or of the regulations issued 
under the provisions of section 6 (b), clause (2), hereof, if the 
lease is maintained under the provisions of section 6 hereof, such 
lease may be canceled by the Secretary, subject to the right of 
judicial review as provided in section 8 (j), if such default con- 
tinues for the period of thirty days after mailing of notice by 
registered letter to the lease owner at his record post office address. 

(2) Whenever the owner of any producing lease fails to 
comply with any of the provisions of this Act, or of the lease, or of 
the regulations issued under this Act and in force and effect on the 
date of the issuance of the lease if the lease is issued under the 
provisions of section 8 hereof, or of the regulations issued under 
the provisions of section 6 (b), clause (2), hereof, if the lease is 
maintained under the provisions of section 6 hereof, such lease may 
be forfeited and canceled by an appropriate proceeding in any 
United States district court having jurisdiction under the provi- 
sions of section 4 (b) of this Act. 

(c) Rights-of-way through the submerged lands of the outer 
Continental Shelf, whether or not such lands are included in a 
lease maintained or issued pursuant to this Act, may be granted 
by the Secretary for pipeline purposes for the transportation of 
oil, natural gas, sulphur, or other mineral under such regulations 
and upon such conditions as to the application therefor and the 
survey, location and width thereof as may be prescribed by the 
Secretary, and upon the express condition that such oil or gas pipe- 
lines shall transport or purchase without discrimination, oil or 
natural gas produced from said submerged lands in the vicinity of 
the pipeline in such proportionate amounts as the Federal Power 



423 

Commission, in the case of gas, and the Interstate Commerce 
Commission, in the case of oil, may, after a full hearing with due 
notice thereof to the interested parties, determine to be reasonable, 
taking into account, among other things, conservation and the 
prevention of waste. Failure to comply with the provisions of this 
section or the regulations and conditions prescribed thereunder 
shall be ground for forfeiture of the grant in an appropriate ju- 
dicial proceding instituted by the United States in any United 
States district court having jurisdiction under the provisions of 
section 4 (b) of this Act. 

Section 6. Maintenance of Leases on Outer Continental 
Shelf. — 

(a) The provisions of this section shall apply to any mineral 
lease covering submerged lands of the outer Continental Shelf 
issued by any State (including any extension, renewal, or replace- 
ment thereof heretofore granted pursuant to such lease or under 
the laws of such State) if — 

(1) such lease, or a true copy thereof, is filed with the Secre- 
tary by the lessee or his duly authorized agent within ninety days 
from the effective date of this Act, or within such further period or 
periods as provided in section 7 hereof or as may be fixed from 
time to time by the Secretary ; 

(2) such lease was issued prior to December 21, 1948, and 
would have been on June 5, 1950, in force and effect in accordance 
with its terms and provisions and the law of the State issuing it 
had the State had authority to issue such lease ; 

(3) there is filed with the Secretary, within the period or 
periods specified in paragraph (1) of this subsection, (A) a cer- 
tificate issued by the State official or agency having jurisdiction 
over such lease stating that it would have been in force and effect 
as required by the provisions of paragraph (2) of this subsection, 
or (B) in the absence of such certificate, evidence in the form of 
affidavits, receipts, canceled checks, or other documents that may 
be required by the Secretary, sufficient to prove that such lease 
would have been so in force and effect; 

(4) except as otherwise provided in section 7 hereof, all rents, 
royalties, and other sums payable under such lease between June 5, 
1950, and the effective date of this Act, which have not been paid 
in accordance with the provisions thereof, or to the Secretary or 
to the Secretary of the Navy, are paid to the Secretary within the 
period or periods specified in paragraph (1) of this subsection, 
and all rents, royalties, and other sums payable under such 
lease after the effective date of this Act, are paid to the Secretary, 



424 

who shall deposit such payments in the Treasury in accordance 
with section 9 of this Act; 

(5) the holder of such lease certifies that such lease shall 
continue to be subject to the overriding royalty obligations exist- 
ing on the effective date of this Act; 

(6) such lease was not obtained by fraud or misrepresen- 
tation ; 

(7) such lease, if issued on or after June 23, 1947, was issued 
upon the basis of competitive bidding; 

(8) such lease provides for a royalty to the lessor on oil and 
gas of not less than 12^ per centum and on sulphur of not less 
than 5 per centum in amount or value of the production saved, 
removed, or sold from the lease, or, in any case in which the lease 
provides for a lesser royalty, the holder thereof consents in writing, 
filed with the Secretary, to the increase of the royalty to the mini- 
mum herein specified; 

(9) the holder thereof pays to the Secretary within the period 
or periods specified in paragraph (1) of this subsection an amount 
equivalent to any severance, gross production, or occupation taxes 
imposed by the State issuing the lease on the production from the 
lease, less the State's royalty interest in such production, between 
June 5, 1950, and the effective date of this Act and not heretofore 
paid to the State, and thereafter pays to the Secretary as an addi- 
tional royalty on the production from the lease, less the United 
States' royalty interest in such production, a sum of money equal 
to the amount of the severance, gross production, or occupation 
taxes which would have been payable on such production to the 
State issuing the lease under its laws as they existed on the effec- 
tive date of this Act; 

(10) such lease will terminate within a period of not more 
than five years from the effective date of this Act in the absence of 
production or operations for drilling, or, in any case in which the 
lease provides for a longer period, the holder thereof consents in 
writing, filed with the Secretary, to the reduction of such period so 
that it will not exceed the maximum period herein specified ; and 

(11) the holder of such lease furnishes such surety bond, if 
any, as the Secretary may require and complies with such other 
reasonable requirements as the Secretary may deem necessary to 
protect the interests of the United States. 

(b) Any person holding a mineral lease, which as determined 
by the Secretary meets the requirements of subsection (a) of this 
section, may continue to maintain such lease, and may conduct 
operations thereunder, in accordance with (1) its provisions as to 
the area, the minerals covered, rentals and, subject to the provi- 



425 

sions of paragraphs (8), (9) and (10) of subsection (a) of this 
section, as to royalties and as to the term thereof and of any ex- 
tensions, renewals, or replacements authorized therein or hereto- 
fore authorized by the laws of the State issuing such lease, or if 
oil or gas was not being produced in paying quantities from such 
lease on or before December 11, 1950, or if production in paying 
quantities has ceased since June 5, 1950, or if the primary term 
of such lease has expired since December 11, 1950, then for a term 
from the effective date hereof equal to the term remaining unex- 
pired on December 11, 1950, under the provisions of such lease or 
any extensions, renewals, or replacements authorized therein, or 
heretofore authorized by the laws of such State, and (2) such 
regulations as the Secretary may under section 5 of this Act pre- 
scribe within ninety days after making his determination that such 
lease meets the requirements of subsection (a) of this section: 
Provided, however, That any rights to sulphur under any lease 
maintained under the provisions of this subsection shall not ex- 
tend beyond the primary term of such lease or any extension there- 
of under the provisions of such subsection (b) unless sulphur is 
being produced in paying quantities or drilling, well reworking, 
plant construction, or other operations for the production of sul- 
phur, as approved by the Secretary, are being conducted on the 
area covered by such lease on the date of expiration of such pri- 
mary term or extension: Provided further, That if sulphur is 
being produced in paying quantities on such date, then such rights 
shall continue to be maintained in accordance with such lease and 
the provisions of this Act : Provided further, That if the primary 
term of a lease being maintained under subsection (b) hereof 
has expired prior to the effective date of this Act and oil or gas 
is being produced in paying quantities on such date, then such 
rights to sulphur as the lessee may have under such lease shall 
continue for twenty-four months from the effective date of this 
Act and as long thereafter as sulphur is produced in paying quan- 
tities, or drilling, well working, plant construction, or other opera- 
tions for the production of sulphur, as approved by the Secretary, 
are being conducted on the area covered by the lease. 

(c) The permission granted in subsection (b) of this section 
shall not be construed to be a waiver of such claims, if any, as 
the United States may have against the lessor or the lessee or any 
other person respecting sums payable or paid for or respecting 
activities conducted under the lease, prior to the effective date of 
this Act. 

(d) Any person complaining of a negative determination by 
the Secretary of the Interior under this section may have such 



426 

determination reviewed by the United States District Court for 
the District of Columbia by filing a petition for review within 
sixty days after receiving notice of such action by the Secretary, 
(e) In the event any lease maintained under this section covers 
lands beneath navigable waters, as that term is used in the Sub- 
merged Lands Act, as well as lands of the outer Continental Shelf, 
the provisions of this section shall apply to such lease only insofar 
as it covers lands of the outer Continental Shelf. 

Section 7. Controversy Over Jurisdiction. — 

In the event of a controversy between the United States and a 
State as to whether or not lands are subject to the provisions of 
this Act, the Secretary is authorized, nothwithstanding the pro- 
visions of subsections (a) and (b) of section 6 of this Act, and 
with the concurrence of the Attorney General of the United States, 
to negotiate and enter into agreements with the State, its political 
subdivision or grantee or a lessee thereof, respecting operations 
under existing mineral leases and payment and impounding of 
rents, royalties, and other sums payable thereunder, or with the 
State, its political subdivision or grantee, respecting the issuance 
or nonissuance of new mineral leases pending the settlement or 
adjudication of the controversy. The authorization contained in the 
preceding sentence of this section shall not be construed to be a 
limitation upon the authority conferred on the Secretary in other 
sections of this Act. Payments made pursuant to such agreement, 
or pursuant to any stipulation between the United States and a 
State, shall be considered as compliance with section 6 (a) (4) 
hereof upon the termination of such agreement or stipulation by 
reason of the final settlement or adjudication of such controversy, 
if the lands subject to any mineral lease are determined to be in 
whole or in part lands subject to the provisions of this Act, the 
lessee, if he has not already done so, shall comply with the require- 
ments of section 6 (a), and thereupon the provisions of section 6 
(b) shall govern such lease. The notice concerning "Oil and Gas 
Operations in the Submerged Coastal Lands of the Gulf of Mexico" 
issued by the Secretary on December 11, 1950 (15 F.R. 8835), as 
amended by the notice dated January 26, 1951 (16 F.R. 953), 
and as supplemented by the notices dated February 2, 1951 (16 
F.R. 1203), March 5, 1951 (16 F.R. 2195), April 23, 1951 (16 
F.R. 3623), June 25, 1951 (16 F.R. 6404), August 22, 1951 (16 
F.R. 8720), October 24, 1951 (16 F.R. 10998), December 21, 1951 
(17 F.R. 43), March 25, 1952 (17 F.R. 2821), June 26, 1952 (17 
F.R. 5833), and December 24, 1952 (18 F.R. 48), respectively, is 
hereby approved and confirmed. 



42? 

Section 8. Leasing of Outer Continental Shelf. — 

(a) In order to meet the urgent need for further exploration 
and development of the oil and gas deposits of the submerged lands 
of the outer Continental Shelf, the Secretary is authorized to grant 
to the highest responsible qualified bidder by competitive bidding 
under regulations promulgated in advance, oil and gas leases on 
submerged lands of the outer Continental Shelf which are not 
covered by leases meeting the requirements of subsection (a) of 
section 6 of this Act. The bidding shall be (1) by sealed bids, and 
(2) at the discretion of the Secretary, on the basis of a cash bonus 
with a royalty fixed by the Secretary at not less than 12% per 
centum in amount of value of the production saved, removed or 
sold, or on the basis of royalty, but at not less than the per centum 
above mentioned, with a cash bonus fixed by the Secretary. 

(b) An oil and gas lease issued by the Secretary pursuant to 
this section shall (1) cover a compact area not exceeding five 
thousand seven hundred and sixty acres, as the Secretary may 
determine, (2) be for a period of five years and as long thereafter 
as oil or gas may be produced from the area in paying quantities, 
or drilling or well reworking operations as approved by the Secre- 
tary are conducted thereon, (3) require the payment of a royalty 
of not less than 121/2 per centum, in the amount or value of the 
production saved, removed, or sold from the lease, and (4) contain 
such rental provisions and such other terms and provisions as the 
Secretary may prescribe at the time of offering the area for 
lease. 

(c) In order to meet the urgent need for further exploration 
and development of the sulphur deposits in the submerged lands 
of the outer Continental Shelf, the Secretary is authorized to 
grant to the qualified persons offering the highest cash bonuses on 
a basis of competitive bidding sulphur leases on submerged lands 
of the outer Continental Shelf which are not covered by leases 
which include sulphur and meet the requirements of subsection 
(a) of section 6 of this Act, and which sulphur leases shall be 
offered for bid by sealed bids and granted on separate leases from 
oil and gas leases, and for a separate consideration, and without 
priority or preference accorded to oil and gas lessees on the same 
area. 

(d) A sulphur lease issued by the Secretary pursuant to this 
section shall (1) cover an area of such size and dimensions as the 
Secretary may determine, (2) be for a period of not more than 
ten years and so long thereafter as sulphur may be produced from 
the area in paying quantities or drilling, well reworking, plant 



428 

construction, or other operations for the production of sulphur, as 
approved by the Secretary, are conducted thereon, (3) require the 
payment to the United States of such royalty as may be specified 
in the lease but not less than 5 per centum of the gross production 
or value of the sulphur at the wellhead, and (4) contain such rental 
provisions and such other terms and provisions as the Secretary 
may by regulation prescribe at the time of offering the area for 
lease. 

(e) The Secretary is authorized to grant to the qualified per- 
sons offering the highest cash bonuses on a basis of competitive 
bidding leases of any mineral other than oil, gas, and sulphur 
in any area of the outer Continental Shelf not then under lease 
for such mineral upon such royalty, rental and other terms and 
conditions as the Secretary may prescribe at the time of offering 
the area for lease. 

(f ) Notice of sale of leases, and the terms of bidding, authorized 
by this section shall be published at least thirty days before the 
date of sale in accordance with rules and regulations promulgated 
by the Secretary. 

(g) All moneys paid to the Secretary for or under leases 
granted pursuant to this section shall be deposited in the Treasury 
in accordance with section 9 of this Act. 

(h) The issuance of any lease by the Secretary pursuant to this 
Act, or the making of any interim arrangements by the Secretary 
pursuant to section 7 of this Act shall not prejudice the ultimate 
settlement or adjudication of the question as to whether or not 
the area involved is in the outer Continental Shelf. 

(i) The Secretary may cancel any lease obtained by fraud or 
misrepresentation. 

( j ) Any person complaining of a cancellation of a lease by the 
Secretary may have the Secretary's action reviewed in the United 
States District Court for the District of Columbia by filing a peti- 
tion for review within sixty days after the Secretary takes such 
action. 

Section 9. Disposition of Revenues. — 

All rentals, royalties, and other sums paid to the Secretary or 
the Secretary of the Navy under any lease on the outer Continental 
Shelf for the period from June 5, 1950, to date, and thereafter 
shall be deposited in the Treasury of the United States and 
credited to miscellaneous receipts. 

Section 10. Refunds. — 

(a) Subject to the provisions of subsection (b) hereof, when it 
appears to the satisfaction of the Secretary that any person has 



429 

made a payment to the United States in connection with any lease 
under this Act in excess of the amount he was lawfully required 
to pay, such excess shall be repaid without interest to such person 
or his legal representative, if a request for repayment of such 
excess is filed with the Secretary within two years after the making 
of the payment, or within ninety days after the effective date of 
this Act. The Secretary shall certify the amounts of all such 
repayments to the Secretary of the Treasury, who is authorized 
and directed to make such repayments out of any moneys in the 
special account established under section 9 of this Act and to issue 
his warrant in settlement thereof. 

(b) No refund of or credit for such excess payment shall be 
made until after the expiration of thiry days from the date upon 
which a report giving the name of the person to whom the refund 
or credit is to be made, the amount of such refund or credit, and 
a summary of the facts upon which the determination of the 
Secretary was made is submitted to the President of the Senate 
and the Speaker of the House of Representatives for transmittal to 
the appropriate legislative committee of each body, respectively: 
Provided, That if the Congress shall not be in session on the date 
of such submission or shall adjourn prior to the expiration of thirty 
days from the date of such submission, then such payment or credit 
shall not be made until thirty days after the opening day of the 
next succeeding session of Congress. 

Section 11. Geological and Geophysical Explorations. — 
Any agency of the United States and any person authorized by 
the Secretary may conduct geological and geophysical explorations 
in the outer Continental Shelf, which do not interfere with or 
endanger actual operations under any lease maintained or granted 
pursuant to this Act, and which are not unduly harmful to aquatic 
life in such area. 

Section 12. Reservations. — 

(a) The President of the United States may, from time to time, 
withdraw from disposition any of the unleased lands of the outer 
Continental Shelf. 

(b) In time of war, or when the President shall so prescribe, the 
United States shall have the right of first refusal to purchase at 
the market price all or any portion of any mineral produced from 
the outer Continental Shelf. 

(c) All leases issued under this Act, and leases, the maintenance 
and operation of which are authorized under this Act, shall con- 
tain or be construed to contain a provision whereby authority is 
vested in the Secretary, upon a recommendation of the Secretary 



430 

of Defense, during a state of war or national emergency declared 
by the Congress or the President of the United States after the 
effective date of this Act, to suspend operations under any lease ; 
and all such leases shall contain or be construed to contain pro- 
visions for the payment of just compensation to the lessee whose 
operations are thus suspended. 

(d) The United States reserves and retains the right to desig- 
nate by and through the Secretary of Defense, with the approval of 
the President, as areas restricted from exploration and operation 
that part of the outer Continental Shelf needed for national de- 
fense ; and so long as such designation remains in effect no explo- 
ration or operations may be conducted on any part of the surface 
of such area except with the concurrence of the Secretary of De- 
fense; and if operations or production under any lease thereto- 
fore issued on lands within any such restricted area shall be sus- 
pended, any payment of rentals, minimum royalty, and royalty 
prescribed by such lease likewise shall be suspended during such 
period of suspension of operation and production, and the term of 
such lease shall be extended by adding thereto any such suspension 
period, and the United States shall be liable to the lessee for such 
compensation as is required to be paid under the Constitution of 
the United States. 

(e) All uranium, thorium, and all other materials determined 
pursuant to paragraph (1) of subsection (b) of section 5 of the 
Atomic Energy Act of 1946, as amended, to be peculiarly essential 
to the production of fissionable material, contained, in whatever 
concentration, in deposits in the subsoil or seabed of the outer 
Continental Shelf are hereby reserved for the use of the United 
States. 

(f) The United States reserves and retains the ownership of 
and the right to extract all helium, under such rules and regula- 
tions as shall be prescribed by the Secretary, contained in gas 
produced from any portion of the outer Continental Shelf which 
may be subject to any lease maintained or granted pursuant to 
this Act, but the helium shall be extracted from such gas so as 
to cause no substantial delay in the delivery of gas produced to 
the purchaser of such gas. 

Section 13. Naval Petroleum Reserve Executive Order 
Repealed. — 

Executive Order Numbered 10426, dated January 16, 1953, 
entitled "Setting Aside Submerged Lands of the Continental Shelf 
as a Naval Petroleum Reserve," is hereby revoked. 



431 

Section 14. Prior Claims Not Affected. — 

Nothing herein contained shall affect such rights, if any, as may 
have been acquired under any law of the United States by any 
person in lands subject to this Act and such rights, if any, shall 
be governed by the law in effect at the time they may have been 
acquired: Provided, however, That nothing herein contained is 
intended or shall be construed as a finding, interpretation, or con- 
struction by the Congress that the law under which such rights 
may be claimed in fact applies to the lands subject to this Act 
or authorizes or compels the granting of such rights in such 
lands, and that the determination of the applicability or effect of 
such law shall be unaffected by anything herein contained. 

Section 15. Report by Secretary. — 

As soon as practicable after the end of each fiscal year, the 
Secretary shall submit to the President of the Senate and the 
Speaker of the House of Representatives a report detailing the 
amounts of all moneys received and expended in connection with 
the administration of this Act during the preceding fiscal year. 

Section 16. Appropriations. — 

There is hereby authorized to be appropriated such sums as may 
be necessary to carry out the provisions of this Act. 

Section 17. Separability. — 

If any provision of this Act, or any section, subsection, sentence, 
clause, phrase or individual word, or the application thereof to 
any person or circumstance is held invalid, the validity of the 
remainder of the Act and of the application of any such provision, 
section, subsection, sentence, clause, phrase or individual word to 
other persons and circumstances shall not be affected thereby. 

Approved August 7, 1953. 

2. Territorial Waters and Fisheries 

a. Introductory Note. Presidential Proclamation No. 2668, concerning 
fisheries, and the accompanying Executive Order No. 9634, both of 28 Sep- 
tember 1945, are printed below. The Proclamation and Executive Order have 
also been published in U.N. Leg. Series I (1951), pages 112 and 113; 40 
A.J.I.L., Supp. 1946, pages 46 and 48; and the Proclamation in l.C.J. , 
Pleadings, 1951, U.K. -Norway, II, page 252. The Legal Adviser of the 
Department of State has written as follows on the policy of the United 
States respecting fisheries as enunciated in the Proclamation: "* * * This 
[Proclamation] declares the policy of the United States on the establish- 



432 

ment of fishery conservation zones in the high seas contiguous to its coasts. 
Where such fishing activities are maintained by United States nationals alone, 
it regards it as proper that regulation be exercised by the United States 
exclusively. But when the fishing activities have been legitimately developed 
and maintained jointly by nationals of the United States and nationals of 
other States, conservation zones may be established by agreement between 
the United States and such other States. This proclamation has been mis- 
understood by some as implying a claim to exclusive fishing rights for United 
States nationals in the waters off its coasts. The proclamation asserts no 
such claim, and such is not the position of the United States. * * *" 
Phleger, "Recent Developments Affecting the Regime of the High Seas," 
32 Department of State Bulletin 93 U (6 June 1955) at page 936. (Footnotes 
omitted.) For other comment on the Fisheries Proclamation, see Bibliograph- 
ical Note, supra. 

The United States has maintained that three miles is the legal limit of 
the territorial sea, except where larger claims could be justified on a 
historical basis. A/CN.4/99/Add. 1, page 82. The United States has, how- 
ever, asserted the right to take certain exceptional measures beyond this 
limit. Examples of U.S. legislation asserting such claims are the U.S. Tariff 
Act, 17 June 1930, as amended, and the Anti-Smuggling Act, 5 August 1935, 
as amended. Relevant extracts from both Acts are printed in U.N. Leg. 
Series I (1951), pages 101 and 107. Phleger, supra, pages 934-35, character- 
izes the exceptions to the principle of the freedom of the seas as follows: 
"* * * Thus, it has long been recognized that a State may suppress piracy. 
It may seize a vessel flying its flag without authority. The right of hot 
pursuit is accepted. The enforcement, on the part of coastal States, of 
revenue and sanitary laws is recognized. Finally, in this modern age, the 
right of a State, for defense or security purposes, to take preventive meas- 
ures on the high seas is in process of development. * * *" (Footnotes 
omitted.) A recent official statement of the United States position on the 
limits of territorial waters is contained in A/2934, page 45, at page 46, Note 
of 3 February 1955 from the Permanent Delegation of the United States to 
the United Nations, commenting on the draft articles on the territorial sea 
of the International Law Commission. Three paragraphs from this state- 
ment are quoted here in order to give the views of the United States on this 
question : 

"* * * So far as concerns the question of the breadth of the 
territorial sea and the various suggestions set out in paragraph 68 
of the report, the guiding principle of the Government of the United 
States is that any proposal must be clearly consistent with the 
principle of freedom of the seas. Some of the proposals amount to 
a virtual abandonment or denial of that principle. In this con- 
nexion, it must be pointed out that the high seas are an area under 
a definite and established legal status which requires freedom of 
navigation and use for all. They are not an area in which a legal 
vacuum exists free to be filled by individual States, strong or weak. 
History attests to the failure of that idea and to the evolution of 
the doctrine of the freedom of the seas as a principle fair to all. The 
regime of territorial waters itself is an encroachment on that doc- 
trine and any breadth of territorial waters is in derogation of it, so 
the derogations must be kept to an absolute minimum, agreed to by 
all as in the interest of all. 



433 

"That the breadth of the territorial sea should remain fixed at 
three miles, is without any question the proposal most consistent 
with the principle of freedom of the seas. The three-mile limit is 
the greatest breadth of territorial waters on which there has ever 
been anything like common agreement. Everyone is now in agree- 
ment that the coastal State is entitled to a territorial sea to that 
distance from its shores. There is no agreement on anything more. 
If there is any limit which can safely be laid down as fully con- 
forming to international law, it is the three-mile limit. This point, 
in the view of the Government of the United States, is often over- 
looked in discussions on this subject, where the tendency is to debate 
the respective merits of various limits as though they had the same 
sanction in history and in practice as the three-mile limit. But 
neither six nor nine nor twelve miles, much less other more extreme 
claims for territorial seas, has the same historical sanction and a 
record of acceptance in practice marred by no protest from other 
States. A codification of the international law applicable to the 
territorial sea must, in the opinion of the Government of the 
United States, incorporate this unique status of the three-mile limit 
and record its unquestioned acceptance as a lawful limit. 

"This being established, there remains the problem of ascertaining 
the status of claims to sovereignty beyond the three-mile limit. The 
diversity of the claims involved bears witness, in the opinion of the 
Government of the United States to the inability of each to command 
the degree of acceptance which would qualify it for possible con- 
sideration as a principle of international law. Not only does each 
proposed limit fail to command the positive support of any great 
number of nations, but each has been strongly opposed by other na- 
tions. This defect is crucial and, in view of the positive rule of 
freedom of the sea now in effect in the waters where the claims are 
made, no such claim can be recognized in the absence of common 
agreement. A codification of the international law applicable to the 
territorial sea should, in the view of the Government of the United 
States, record the lack of legal status of these claims. * * *" 

Other recent United States developments are referred to elsewhere in 
this book. Most of the Fishery Treaties to which the United States is a party 
are reprinted supra, Section III. Documents concerning United States partic- 
ipation in Inter-American Conferences appear, supra, Section II, C. The 
Chile-Ecuador-Peru Agreements, affecting United States interests, are 
printed, supra, Section II, D. The United States has made formal protests 
against certain claims of other States which are referred to in connection 
with the State concerned, infra. A typical Protest Note is printed under 
Chile, infra. Texts of United States Protest Notes to Chile, El Salvador, 
Saudi Arabia, Argentina, Peru, Egypt and Ecuador are collected in I.C.J. , 
Pleadings, 1951, U.K. -Norway, IV, pages 599-604. Comments giving the 
United States viewpoint with respect to fisheries are in A/CN.4/99/Add. 1, 
pages 75-81; with respect to territorial waters, Ibid., page 82, and A/2934, 
pages 45-46, partially quoted, supra, in this note; and with respect to the 
Continental Shelf, A/2456, page 70. See, also, A/CN.4/19, page 104. 

As a result of seizures of American vessels on the high seas in areas 
claimed by other States as territorial waters, Congress, in 1954, passed an Act 
to protect the rights of vessels of the United States on the high seas and in 



434 

such claimed territorial waters of foreign countries, 68 Stat. 883, Public Law 
680, approved 27 August 1954. The text is reproduced below from U.S.C., 
Supp. Ill (1952 Edition) (1956), page 633. Phleger, supra, page 937, stated 
that several claims for reimbursement under this Act were pending in May, 
1955. 

******* 

b. PRESIDENTIAL PROCLAMATION, 28 SEPTEMBER 1945 

(Proclamation No. 2668, 10 F.R. 12304) 

Whereas for some years the Government of the United States 
of America has viewed with concern the inadequacy of present 
arrangements for the protection and perpetuation of the fishery 
resources contiguous to its coasts, and in view of the potentially 
disturbing effect of this situation, has carefully studied the pos- 
sibility of improving the jurisdictional basis for conservation 
measures and international cooperation in this field ; and 

Whereas such fishery resources have a special importance to 
coastal communities as a source of livelihood and to the nation 
as a food and industrial resource ; and 

Whereas the progressive development of new methods and 
techniques contributes to intensified fishing over wide sea areas 
and in certain cases seriously threatens fisheries with depletion; 
and 

Whereas there is an urgent need to protect coastal fishery 
resources from destructive exploitation, having due regard to 
conditions peculiar to each region and situation and to the special 
rights and equities of the coastal State and of any other State 
which may have established a legitimate interest therein ; 

Now, therefore, I, Harry S. Truman, President of the United 
States of America, do hereby proclaim the following policy of the 
United States of America with respect to coastal fisheries in 
certain areas of the high seas : 

In view of the pressing need for conservation and protection 
of fishery resources, the Government of the United States regards 
it as proper to establish conservation zones in those areas of the 
high seas contiguous to the coasts of the United States wherein 
fishing activities have been or in the future may be developed and 
maintained on a substantial scale. Where such activities have been 
or shall hereafter be developed and maintained by its nationals 
alone, the United States regards it as proper to establish explicitly 
bounded conservation zones in which fishing activities shall be 
subject to the regulation and control of the United States. Where 
such activities have been or shall hereafter be legitimately de- 
veloped, maintained jointly by nationals of the United States and 



435 

nationals of other States, explicitly bounded conservation zones 
may be established under agreements between the United States 
and such other States ; and all fishing activities in such zones shall 
be subject to regulation and control as provided in such agree- 
ments. The right of any State to establish conservation zones off its 
shores in accordance with the above principles is conceded, pro- 
vided that corresponding recognition is given to any fishing 
interests of nationals of the United States which may exist in such 
areas. The character as high seas of the areas in which such con- 
servation zones are established and the right to their free and 
unimpeded navigation are in no way thus affected. 

In witness whereof, I have hereunto set my hand and caused 
the seal of the United States of America to be affixed. 

Done at the City of Washington this twenty-eighth day of 
September, in the year of our Lord nineteen hundred and forty- 
five, and of the Independence of the United States of America the 
one hundred and seventieth. 

Harry S. Truman 
By the President : 

Dean Acheson 

Acting Secretary of State. 
[seal] 



c. EXECUTIVE ORDER, 28 SEPTEMBER 1945 

(Executive Order No. 9634, 10 F.R. 12305) 

By virtue of and pursuant to the authority vested in me as 
President of the United States, it is hereby ordered that the Sec- 
retary of State and the Secretary of the Interior shall from time 
to time jointly recommend the establishment by Executive orders 
of fishery conservation zones in areas of the high seas contiguous 
to the coasts of the United States, pursuant to the proclamation 
entitled "Policy of the United States With Respect to Coastal 
Fisheries in Certain Areas of the High Seas," this day signed by 
me, and said Secretaries shall in each case recommend provisions 
to be incorporated in such orders relating to the administration, 
regulation and control of the fishery resources of and fishing 
activities in such zones, pursuant to authority of law heretofore 
or hereafter provided. 

Harry S. Truman 
The White House 

September 28, 1945. 



436 

d. PROTECTION OF VESSELS ON THE HIGH SEAS AND IN TERRITORIAL 
WATERS OF FOREIGN COUNTRIES— PUBLIC LAW 680, 27 AUGUST 
1954 

* * * 

Chapter 25 
* * * 

Section 1971. Definition. — 

For the purposes of this chapter the term "vessel of the United 
States" shall mean any private vessel documented or certificated 
under the laws of the United States. 

Section 1972. Action by Secretary of State Upon Seizure 
of Vessel of Foreign Country. — 

In any case where — 

(a) a vessel of the United States is seized by a foreign country 
on the basis of rights or claims in territorial waters or the high 
seas which are not recognized by the United States ; and 

(b) there is no dispute of material facts with respect to the 
location or activity of such vessel at the time of such seizure, 

the Secretary of State shall as soon as practicable take such 
action as he deems appropriate to attend to the welfare of such 
vessel and its crew while it is held by such country and to secure 
the release of such vessel and crew. 

Section 1973. Reimbursement of Owner for Fine Paid to 
Secure Release of Vessel and Crew. — 

In any case where a vessel of the United States is seized by a 
foreign country under the conditions of section 1972 of this title 
and a fine must be paid in order to secure the prompt release of 
the vessel and crew, the owners of the vessel shall be reimbursed 
by the Secretary of the Treasury in the amount certified to him 
by the Secretary of State as being the amount of the fine actually 
paid. 

Section 1974. Inapplicability of Chapter to Certain 
Seizures. — 

The provisions of this chapter shall not apply with respect to 
a seizure made by a country at war with the United States or a 
seizure made in accordance with the provisions of any fishery 
convention or treaty to which the United States is a party. 

Section 1975. Action by Secretary on Claims for Amounts 

Expended Because of Seizure. — 
The Secretary of State shall take such action as he may deem 
appropriate to make and collect on claims against a foreign 



437 

country for amounts expended by the United States under the 
provisions of this chapter because of the seizure of a United States 
vessel by such country. 

Section 1976. Authorization of Appropriations. — 

There are authorized to be appropriated such amounts as may 
be necessary to carry out the provisions of this chapter. 

[Table of Contents and Citations omitted.] 
$ * * # * # # 









B. SIGNIFICANT DEVELOPMENTS IN 
OTHER COUNTRIES 



B. Significant Developments in Other Countries 

1. Argentina 

Note. Argentina was one of the first countries to make a claim to the 
continental shelf. Presidential Decree No. 1386 of 24 January 1944, concern- 
ing Mineral Reserves, Article 2, reads in part as follows: "* * * zones of 
the epicontinental sea of Argentina shall be deemed to be temporary zones 
of mineral reserves; * * *." U. N. Leg. Series I, (1951), page 3. Presi- 
dential Decree No. 14,708 of 11 October 1946, concerning National Sov- 
ereignty over Epicontinental Sea and the Argentina Continental Shelf and 
basing itself on Article 2 of the 1944 Decree, states in Article 1 : "It is hereby 
declared that the Argentine epicontinental sea and continental shelf are 
subject to the sovereign power of the nation;" (italics supplied). In Article 
2 of the 1944 Decree, the claimed waters are declared to be unaffected for 
purposes of free navigation. U. N. Leg Series I, (1951), page 4; N. W. C, 
J. L. Documents, 19U8-U9, page 187; /. C. J., Pleadings, 1951, U. K .-Norway, 
II, page 254; 41 A. J. I. L., Supp., 1947, page 11. The United States sent 
a Protest Note to Argentina with respect to this Decree on 2 July 1948. 
U. N. Leg. Series I, (1951), page 5; I. C. J., Pleadings, 1951, U. K.-Norway, 
IV, page 601; A/CN.4/19, page 115. Argentine national legislation on terri- 
torial waters and fishing are printed in U. N. Leg. Series 1 (1951), page 51. 

2. Australia 

a. Note. There have been significant developments in Australia and the 
documentation thereof is too extensive to be reproduced here in full. Two 
Proclamations of the Governor-General of 10 September 1953, reprinted below, 
claim sovereign rights over the continental shelf off the coasts of Australian 
territory, and off the coasts of the Trusteeship Territory of New Guinea. 
Related legislation and proclamations define the extent of the continental 
shelf, and the zones for sedentary fisheries. Section 51 (x) of the Common- 
wealth Constitution gives Parliament authority to legislate with respect to 
"Fisheries in Australian waters beyond territorial limits." The Fisheries Act, 
1952-3, the Pearl Fisheries Act, 1952-3, both as amended, and various 
Whaling Acts, inter alia, have exercised this authority. 

The Fisheries Act, 1952-3, as amended, is typical. In Section 4, "Aus- 
tralian waters" is defined as: "(a) Australian waters beyond territorial 
limits; (b) the waters adjacent to a territory and within territorial limits; 
and (c) the waters adjacent to a territory, not being part of the Common- 
wealth, and beyond territorial limits; * * *." "Proclaimed waters" are 
Australian waters specified by Proclamation in force under Section 7 of the 
Act. Section 7 also gives the Minister power to prohibit fishing in "pro- 
claimed waters." Section 9 confers licensing authority. Similar definitions 
of "Australian waters" appear in the Pearl Fishing Act, 1952-3, as amended. 
In the Whaling Act, 1935-1948, the definition is somewhat narrower. The 
Proclamations and the fishery developments are discussed in detail in Goldie, 
"Australia's Continental Shelf; Legislation and Proclamations," 3 /. C. L. Q. 

441 



442 

(1954), page 535 (with map showing claims at pages 536-37), and O'Connell, 
"Sedentary Fisheries and the Australian Continental Shelf," 49 A. J. I. L. 
(1955), page 185. In A/2934, page 25, the Australian Mission to the United 
Nations stated that Australia preferred not to comment on International 
Law Commission drafts in view of the pending dispute between Japan and 
Australia, which the governments concerned were considering submitting 
to the International Court of Justice for solution. The texts of the Proclama- 
tions are taken from 48 A. J. I. L., Supp., 1954, pages 102-103. 

******* 

b. PROCLAMATION, CONTINENTAL SHELF, AUSTRALIA 1 

(10 September 1953) 

Commonwealth of By His Excellency the 

Australia to wit. Governor-General in and 

W.J. Slim over the Commonwealth of 

Governor-General Australia 

Whereas International Law recognizes that there appertain to 
a coastal State or territory sovereign rights over the sea-bed and 
subsoil of the continental shelf contiguous to its coasts for the 
purpose of exploring and exploiting the natural resources of that 
sea-bed and subsoil : 

And whereas it is desirable to declare that Australia has those 
sovereign rights over the sea-bed and subsoil of the continental 
shelf contiguous to any part of the coasts of certain territories 
under its authority: 

Now therefore I, Sir William Joseph Slim, the Governor- 
General aforesaid, acting with the advice of the Federal Executive 
Council, hereby declare that Australia has sovereign rights over 
the sea-bed and subsoil of — 

(a) the continental shelf contiguous to any part of its coasts ; 
and 

(b) the continental shelf contiguous to any part of the coasts 
of territories under its authority other than territories 
administered under the trusteeship system of the United 
Nations, 

for the purpose of exploring and exploiting the natural x*e3ources 
of that sea-bed and subsoil : 

And I further declare that nothing in this Proclamation affects — 

(a) the character as high seas of waters outside the limits 
of territorial waters; or 

(b) the status of the sea-bed and subsoil that lie beneath 
territorial waters. 



Commonwealth of Australia Gazette, Sept. 11, 1953, No. 56. 



443 

Given under my Hand and the Seal of the Commonwealth of 
Australia this tenth day of September, in the year of 
(L.S.) our Lord, One thousand nine hundred and fifty-three, and 
in the second year of Her Majesty's reign. 

By His Excellency's Command,